O. Bahree vs Rikhi Bros.
1992 Latest Caselaw 675 Del

JUDGMENT

Santosh Duggal, J.

(1) The appellant O.Bahree, who is the owner of property bearing No. 1/4, E.P. Railway Co-operative House Building Society, Greater Kailash Enclave I, New Delhi, let out the same to the respondent through his attorney, Shri I.C.Bahree, after obtaining permission of the Rent Controller, Delhi under section 21 of the Act, for a limited period of three years effective from 27.10.1978. On the expiry of the aforesaid period, he made an application through the aforesaid attorney. Subsequently on objections by the tenant, inter alia, that the attorney could not seek possession of the property, he got his name substituted.

(2) This application styled as an execution application was moved on 5.1.1982, when the tenant besides filing reply, also look up objections to the effect that the permission of the Rent Controller was obtained by fraudulent mis-representation that premises were available for letting for three years, for the reason that the owner was expected to retire thereafter, and that, in fact, the said owner was hardly of the age of 50, and no where near the age of superannuation, and that the permission granted on that assumption stood vitiated. The tenant also contended that, in fact, the tenancy had already been created with effect from 15.10.1978, and for that reason also, the provisions of section 21 of the Act were not available to the landlord, as the premises stood already let out, and the permission obtained on the ground that the premises were available for letting, was a nullity. It was further pleaded that, in any case, the said limited tenancy stands superseded by subsequent agreement when the owner Shri O. Bahree himself came to Delhi before the expiry of the limited tenancy, namely, on 12.10.1981, and entered into a fresh agreement with the tenant by agreeing to let the tenant continue on increase of rent, and that rent was accordingly increased from Rs.1600.00 p.m. to Rs.1800.00 p.m., and as such the original order of grant of limited tenancy could not be utilised.

(3) The appellant as owner/landlord controverter all these allegations, and pleaded that there was no fraudulent misrepresentation by his attorney, and that what be meant was that since the appellant was employed in a company at Calcutta, which was in a very shaky position at the time, and the appellant wanted to take voluntary retirement, which he could seek at any time, and in that sense, the , attorney bad stated that the appellant would need the premises on his retirement, after the said period. It was denied that .the tenancy bad been created with effect from 15.10.1978, The explanation was that the agreement was subject to the understanding that the tenancy would be for a limited period turn which an application was to be made to the Rent Controller, and the lease agreement to be executed, only after permission bad been granted, and that, as a matter of fact, an application was moved under section 21 on 19.10.1978, which was taken up for consideration on 23.10.78 when the Rent Controller passed the order granting permission for creation of a tenancy with effect from the said date, and that, in fact, a lease deed was executed on 27.10.78, which was duly registered, under which the tenancy commenced from 27.10.78, namely, the dale of execution of the lease deed. It was contended that the possession of the premises was handed over to the tenant only on 24.10.78, after orders of the court.

(4) The allegation about creation of fresh tenancy was also controverter in its entirety. The plea taken was that when the owner came to Delhi, and met the tenant on 12.10.81, the latter requested that they be allowed to continue for some time, on the plea that they were constructing a house of their own, and required few months to complete the construction and shift to their own house. It was pleaded that the owner acceded to request of the tenant, to continue for a year or so on the specific condition and understanding that either permission be obtained from the Rent Controller for extention of the limited tenancy or when he moves an execution application, the tenant appear and seek time giving an undertaking to vacate it by end of October 1982, and that since neither the tenant approached the Rent Controller for extension of time nor agreed to make an application or give an undertaking, the said understanding could not be acted upon, and that the question of any fresh tenancy, having 'been created, does not arise.

(5) The receipt of amount of R.S.1800.00 p.m. by way of rent after October 1982 was explained by stating- that the tenant was in arrears of rent for one month, namely, Rs.1600.00 , and when be demanded the same on his visit to Delhi on 12.10.81, the tenant agreed to clear the arrears by paying Rs.200.00 in addition to the agreed rent of Rs.1600.00 , and this is how payment was made (a) Rs.1800.00 p.m. He further pleaded that in any case he now required the premises very urgently since his father had died and his mother was living all alone, and his wife was also a fling and wanted to come to Delhi and reside in the house with their son and daughter, and that since the tenant was not- responding to his request, he bad sought assistance of the Court for being put back in vacant possession, and that the tenant's objections were without any basis, filed only with a view to delay the vacation of the premises.

(6) The Rent Controller, after considering the objections, allowed the same and as a result the execution application was dismissed. The objection of the tenant that the permission under section 21 of the Act was obtained by fraud and misrepresentation was upheld on the ground that in view of the admitted position that the owner/landlord had not reached the age of superannuation, the story of premature retirement was apparently an after-thought, and as such the order of grant of permission dated 23.10.78 was not executable. He also accepted the plea of the tenant about creation of a fresh tenancy on the basis of the proved case of increase of rent from Rs.1600.00 to Rs.1800.00 with effect from 1.11.81. The objection of the tenant that the tenancy bad, in fact, commenced from 15.10.78, and as such the premises were not vacant for letting when the application under section 21 was made, and as such the order passed on that application was null and void, was also upheld. The execution application was also held liable to be dismissed, and dismissed for the reason that it had not been moved by the owner himself, but by the attorney who, according to the Rent Controller, was not competent to seek possession of the premises.

(7) On an appeal being taken by the landlord to the Rent Control Tribunal, although the finding of the Rent Controller on the question of creation of fresh tenancy was set aside on the view that mere increase in rent was not tantamount to creation of fresh tenancy; the order of dismissal of the execution application was upheld for the reason that it bad been established on record that the tenant bad been inducted into the premises with effect from 15.10.78, and rent also stood paid from that date, and as such permission from 23.10.78 was obtained by making mis-statement and also by concealment of facts, and was accordingly invalid, and further that the permission under section 21 stood vitiated, in view of the false statement made by appellant's attorney, Shri I. C. Bahree, at the time of obtaining permission to the effect that the premises were available for letting for limited period of three years, where after the owner O.Bahree, appellant was going to retire. The learned Tribunal also opined that in view of the admitted position that the owner was not due to retire in the normal course, and there being no evidence that he was at that time contemplating voluntary or premature retirement and further in view of the admitted position that rent bad been received with effect from 15.10.78, the contentions raised by the tenant were substantiated and cannot be dismissed as an after-thought, simply because they had been taken up by filing objections, after the owner/landlord bad filed execution application.

(8) In this second appeal, the appellant had reiterated the plea that there was no fraudulent misrepresentation at the time of applying for, and obtaining permission, under section 21 of the Act, and that there was every likelihood that either the appellant would be discharged from service because of the unstable position of the company, where he was employed, and that it did, in tact, go into liquidation in the month of May 1982 or he would be forced to seek premature retirement because of that situation, and that it was never the intention of the appellant to mislead the Court to the effect that he was to retire on reaching the age of superannuation, and that he had actually taken up retirement from the company, where he was employeed, in 1982, and was constrained to take up another job in another company in Calcutta, because the tenancy premises in Delhi were not vacated, and available to him for residence. He denied that the tenancy, in fact, commenced from 15.10.1978, and pleaded that there was no evidence anywhere that the tenant had, in fact, been put into possession with effect from 15.10.1978, and that the lease deed executed on 27.10.1978, after the grant of permission under section 21, expressly set out the date of commencement of tenancy to be that date, and that keeping this circumstance in view, it cannot be said that ingredients of section 21 were not satisfied or that the order passed on 23.10.78 was a mindless order or that any fraud had been played on the court while obtaining said order, and that neither the Rent Controller nor the Rent Control Tribunal could have dismissed the execution application on the aforesaid objection taken by the tenant, and that although the premises were required to be vacated in terms of the order under section 21, as well as the lease deed executed pursuant thereto on 26.10.81, but because of delaying tactics of the tenant, the appellant has not been able to get possession of the premises so far, and that the judgment of the Tribunal was liable to be set aside and the appellant ordered to be put back in vacant possession, in pursuance of the order dated 23.10.78 passed by the Rent Controller.

(9) Mr. Vijay Kishan, appearing for the petitioner, argued at the outset that the objections by the respondent having been filed not only after expiry of the period of limitation but even subsequent to the landlord's application, seeking vacant possession of the premises in terms of the order under section 21 of the Act; the same were not maintainable.

(10) He submitted that the position has ben finally settled by the -Supreme Court in a very recent judgment in the case of Smt. Shrista Dhawan v. Mi s. Shaw Brothers, Delhi Law Times 194 (SC). This decision, follows with approval the view taken in earlier case starting from the case of J.R. Vohra v. India Export House Pvt. Ltd. and another, and reiterated in Shiv Chander Kapoor v. Amur Base, , Yamuna Maloo v. Anand Sarup, , Pankaj Bhargava and another v. Mohinder Nath and another, .

(11) There can be no disputing the proposition, as urged by learned counsel for the appellant, that unless exceptional circumstrances exist, and the tenant is able to make out a case that he had discovered certain tact and circumstances, which tend to vitiate ab initio the initial grant of permission, which he must plead to have come to-his knowledge subsequently; he can not be heard to come up, after the expiry of the limited tenancy or in opposition to the execution application. Ordinarily, on the facts which were within tenant's knowledge, while pleading fraud or misrepresentation or collusion, he must come to court during the subsistence of the period of limited tenancy or in any case, as soon as the lads in substantiation of the allegations made by him, come to his knowledge.

(12) Mr. Makhija, in reply, contended that even in the latest judgment in Suit. Shrista Dhawan's case (supra), the Court has recognised certain situations when the tenant can be allowed to file objections, even after the expiry of the limited tenancy, and those situations have been summed up to mean lack of a jurisdictional fact, which has further been illustrated to mean non-availability of vacant premises, and the letting being for residential purposes, because the Court in the aforesaid decision has said specifically that the permission obtained under section 21 may be vitiated, if the premises were not vacant on the dale of the application.

(13) According to Mr. Makhija, it is established on record that the possession of the premises was handed over to the respondent on 15.1().78 .whereas the application was moved only on 19.10).78, and the order was passed oil 23.10.78, and that it is thus a case where manifestly vacant possession of the premises was not available with the landlord at the time application under section 21 was moved, statements made and order obtained. The learned counsel argued that such an order is non est because it is based on a wrong assumption that premises were available for letting whereas, in fact, the possession had already been passed on to the tenant.

(14) Mr. Vijay Kishan contended, however, that it is on record that the lease was executed on 27.10.78 i.e. after the order on the application under section 21 was passed and the tenancy was to commence in terms of this lease deed, which was duly registered, with effect from the date of its execution, and that it was a clear case where no letting had taken place before the application under section 21 was moved, and the mere tad that rent was charged with effect from 15.10.78, namely, from the dale when the possession was allegedly handed over, would not make any difference, because at worse it would he a case where the tenant had got possession of the properly, hut his status was no more than of a licensee, and relationship of landlord and tenant, according to clear stipulation between the parties, was to commence only after the permission of the Rent Controller was accorded, on an application which was agreed to be moved under section 21 of the Act.

(15) Mr. Vijay Kishan further argued that there can he no gainsaying the lad that a licensee does not gel any title in the properly, nor even a right to possession, and his license can be terminated in any time, and that rights accrued to lhc respondent, as a tenant only on the execution of the lease deed pursuant to the permission under section 21 of the Ad. He placed reliance on. a Division Bench judgment of this Court reported as 1991 (3) Delhi Lawyer 382 (DB), Shri Y.L.Popli v. M/s. Remedies (India) Pharmaceuticals and others. It was a case where it was agreed that the tenancy would be in terms of the permission obtained under section 21 of the Act, and the tenant was put into possession, but subsequently oil an application being prepared, the tenant declined to sign the same, and as such no order under section 21 could be obtained, whereupon the landlord took steps to terminate the license, and sought vacant possession. The civil suit tiled for possession on this basis was dismissed, but in appeal, the Division Bench held that in view of the established position that the agreement was for letting the premises for a limited period, after obtaining permission from the Rent Controller under section 21 of the Act, and that the intention to create tenancy being subject to the permission under section 21, the status of the defendant in the case was no more than that of a licensee, irrespective of the fact that exclusive possession of the premises had been given, and the amount paid was shown in the receipt as rent by the property dealer, who issued it on behalf of the landlord.

(16) The Court held that use of the term "rent" instead of "license fee" or the defendants being in exclusive possession of the premises might he circumstances to show that there existed relationship of landlord and tenant, but that was not conclusive of the matter, when there was an intention to the contrary, and the agreement was that the tenancy would only he for a limited period in terms of section 21 of the Act, and that in such a case, landlord was entitled to vacant possession by terminating the license, because the real test was intention of the parties.

(17) In the present case also, there are unmistakable indications us to real intention of the parties to create a tenancy, pursuant only to permission under section 21 of the Act, because inspite of possession having been nanded over to the prospective tenant, an application under section 21 of the Act was moved to which the respondent was a party and no amount by way of rent or otherwise was accepted till the lease deed had been executed, and the lease deed corresponded with the terms of the agreement, inasmuch as it was for a limited period of three years, as stipulated, and the effective date given was only from the date of the execution of the lease deed and did not relate hack to the earlier dale when possession had been handed over. There was thus no letting in favor of the respondent before that dale.

(18) The question whether the possession was as a licensee or otherwise is, however, academic because of the decision by a three Judges' Bench of the Supreme Court in the case: reported as , Pankaj Bhargava and another v. Mohinder Nath and another , a similar contention raised on behalf of the tenant was repelled; namely, induction into the premises before an order granting permission for limited tenancy under section 21 of the Act. The Court, while endorsing the view earlier propounded in the case ttt'D/uinninti v. D.D.G upta, , which was a case of successive short term tenancies in favor of the same tenant, enlarged that principle by holding that, "In one sense, the successive grants of permission would share the characteristics of post fact' grant."

(19) In the case of Pankaj Bhargava (supra), in lad, the defense was that of an earlier subsisting tenancy, which tact had been found in favor of the tenant by the courts below, and confirmed by the High Court, but the Supreme Court firmly held that such a defense was not maintainable, in case the tenant approaches the court after the expiry of the period of limited tenancy, and after the landlord sought possession through Court.

(20) The Court unequivocally propounded the view that pleas, such as, the order under section 21 being vitiated by suppression of fads, or by a fraudulent mis-representation could be open to a tenant in a given case, but emphatically laid down that such a challenge should be brought to Court, as soon as the facts, which are pleaded by way of vitiation of the order of grant of permission, are discovered. The fact that the tenant had already been put in possession of the premises was within their knowledge at the time permission under section 21 was sought, and as such there was no justification for the tenant to wail for the lapse of the entire period, and then come up with these objections, and that too when the landlord sought possession, on failure of the tenant to hand over vacant possession in terms of the agreement of lease, as sanctified by order under section 21 of the Act.

(21) Observations made in an earlier case, reported as . Joginder Kumar Batan v. R.P.Oberoi, were quoted with upproval, in the - case of Pankaj Bhargava (supra), which in turn endorsed the proposition laid down in the case of J.R.Vohra (supra), to the following effect: "......ITwas observed by this Court in J.R.Vohra vs. India Export House that the remedy available to a tenant in a case where there was only a ritualistic observance of the procedure while granting permission for the creation of limited tenancy or where such permission was procured by fraud practiced by the landlord or was a result of collusion between the strong and the weak, would be for the tenant approaching the Rent Controller during the currency of the limited tenancy itself for adjudication of his picas as soon as he discovers facts and circumstances thal tend to vitiate ab initio the initial grant of permission and not to wait till the landlord makes his application for recovery of the premises after the expiry of the period fixed under sec.21."

(22) Identical views were expressed in the cases of Shiv Kumar Kapoor (supra) and Yamuna Maloo (supra). Both the a for said cases were decided by three Judges bench, where also this proposition was unequivocally laid down that objections must be raised during the - currency of the tenancy and not us a defense to the landlord's applications for being put into possession.

(23) This view has been thus very firmly established by the Supreme Court that in case the tenant had any defenses to raise against the validity or enforceability of the permission granted under section 21 of the Act, then it was incumbent upon him to approach the court with the necessary defenses during the subsistence of the limited tenancy or as soon as he discovers the tads which, according to him, constitute fraud or misrepresentation or concealment. The judgment in Yamuna Maloo's case emphatically affirmed this tact after reiterating the proposition already laid down in the cases of J.R. Vohra (supra), and Shiv Chunder Kapoor (supra), and held that :- ".......WEwould like to reiterate that even if such an exercise is 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."

(24) The judgment of the Supreme Court on which Mr. Makhija, appearing for the respondent, placed reliance, namely, Subhash Kumar Law v. R.C. Chhiba, (1988 (15) Drj (SC) 368) 36 (1988) Dlt (SC) 203, was expressly overruled by the latter judgment in the case of Pankaj Bhargava (supra). The plea about the order under section 21 of the Act being by way of ex post facto sanction of an existing tenancy is thus not available per se, and certainly not permissible to be raised after the expiry of the lapse of the limited tenancy. The judgment of the Delhi High Court, on which Mr. Makhija placed reliance, reported as , Tejinder Tewari v. Subhash Lata Kumar, also stands impliedly overruled.

(25) A learned Single Judge of this Court in the case reported as , Ved Vrata v. Madan Lal Bishnoi, also following the judgment of the supreme Court in the case of Yamuna Maloo (supra) held that objections of the tenant not brought forward during the period of lease, and there being no exceptional ground made out for not allowing execution, and no case of serious fraud having been made out, deserves to be dismissed. Similar view was held by another Bench of this Court in the case reported us , Jaswant Singh through L.Rs. v. Gurbax singh Kohli.

(26) This view has been summed up, approved and endorsed in the latest decision of the Supreme Court in the case of Shrista Dhawan (supra), holding that the rent control authorities committed manifest error of law, both in entertaining objections of tenant as to fraud after expiry of limited period tenancy, and then by erroneously placing burden on landlady to disprove it. The Court highlighted the purpose and object behind enactment of section 21 saying that while the Act is meant for protection of the tenant, the legislative policy reflected in section 21 is to carve out an area free of that protection, and where the conditions stipulated in section 21 are satisfied, the prohibition contained in section 14 against eviction of tenants, except on the specified grounds or the requirements of Transfer of property Act, or the Code of Civil Procedure or any other law are removed or dispensed with.

(27) Similar observation was made in Shiv Chander Kapoor's case (supra.) to the effect that section 21 was enacted with the manifest object of assuring the landlords that in case they have some premises available for letting, for a short term, they could do so, by recourse to provisions of section 21.

(28) The landlords were thus freed of the apprehension that in case of need they shall have to face protracted litigation at the bauds of the tenant, and assured that they would not have to satisfy the rigours of requirements of section 14 of the Act. That object is being defeated by tenants coming up with all sorts of objections when the landlord seeks.. possession on tenant's failure to hand over vacant possession in terms of the agreement. The present is typically such a case, where the landlord has bad to go through the usual drill of litigation, in a short term tenancy that expired in october 1981. In fact, this second appeal is a telling reflection on the adverbial system where a case of short term tenancy of three years created by, resort to the special, and essentially summary provisions of section 21 involves protracted .litigation spreading over a decade, the tenant succeeding in the attempt to thwart the process, by filing objectsions.

(29) Be that as it may, the main pica of the tenant in this case, about tenancy having been in existence, and order under section 21 to be treated as non est, for the reason that premises had ceased to be available for letting, has no substance in the face of a- catena of judgments of the Supreme Court cited above, and as summed up in the case of Smt. Shrista Dhawan (supra).

(30) Mr. Makhija's repeated emphasis on the strength of an observation in the aforesaid case to the effect that the tenant can he. heard to raise objections even after the period of expiry of limited tenancy, in case there was lack of a jurisdictional fact, is of no consequence because the argument proceeds on a wrong assumption that premises were not available for letting on account of not being vacant, and possession having been earlier transfered to the tenant. This argument has been expressly repelled in the case of Pankaj Bhargava (supra).

(31) It has also been held in that case, and to similar effect were the observations in the case of Shiv Chander Kapoor (supra) and even in the earlier case of S. B. Naronah v.Prem Kumari Khanna, that there is a presumption of validity of an order passed under section 21 of the Act, abd that the said Validity cannot be challenged by way of collateral defense.

(32) Lack of a jurisdictional fad, militating against the validity of an order under section 21 of the Act, therefore, cannot be assumed unless the tenant is able to establish any such fact which would tend to vitiate the said order. That has to be adjudged in the light of the guidelines laid down in the case of Smt. Shrista Dhawan (supra), It was emphasised in the case of S.B. Naronah (supra), that the tenant must not be permitted (o protract the delivery of possession of the lease premises to the landlord on false plea of fraud or collusion to enable him to defeat the very object of the special procedure provided for to benefit of the landlord under section 21, and that in case there exists a fact which tends to show that the order under section 21 was obtained by way of colourable exercise, and that the premises were available indefinitely for letting, then the only way to harmonise the competing claims is to insist that the tenant approaches the Rent Controller during the currency of the limited tenancy for adjudication of his pleas, no sooner he discovers facts and circumstance that tend to vitiate the initial grant of permission, and there is no reason for the tenant to wait till the landlord makes his application for recovery of possession after expiry of the fixed period.

(33) In this view of the matter, the objections having been filed after landlord's execution application, were not entertainable, as there docs not exist any fresh fact that could bring the case within the exceptions, envisaged in the case of Smt. Shrist Dhawan (supra), in view of the finding that plea of ex post facto section is not available, on the authority of the Supreme Court judgment in the case of Pankaj Bhargava (supra).

(34) As regards the contention that a fraud was perpetrated when application under section 21 was made to the effect that the attorney of the landlord I.C.Bahree made a statement that the premises would be required by the owner after three years, on his retirement; question again is as to why the tenant bad wailed, after enjoying the full period of tenancy, and till the landlord himself came to seek possession. This could be permitted only in one eventuality, namely, the facts having come to the knowledge of the tenant at a subsequent point of time. The burden to establish this is on the tenant, as has been held in the case of Shrista Dhawan (supra). The landlord has tried to explain away this fact by staling that, in fact, he proposed to seek premature retirement because the company, in which he was employed, was in a very shaky position. He has also stated on oath that the said company went into liquidation, and has now been taken over by another company. This is a question of lad as to whether the landlord was to retire on attaining the age of superannuation or was seeking premature retirement. This question cannot be determined at this stage, but there is statement on oath by the landlord that the terms of the tenancy were negotiated by him personally and that he had come to Delhi in October 197 this. about remember not did he that answer evasive an given rather has but tenancy, of terms the negotiating for Delhi to come had landlord that suggestion this denied specifically He Rekhi. Gullu as known also was admitted OW.1 appearing Rekhi Rajiv negotiations. company met and

(35) In face of unrebutted statement on oath by the landlord that he was in Delhi when the tenancy was negotiated, the plea of the respondent that they realised at a later point of time that the landlord was not of normal age of retirement but a much younger person, when Mr. O. Bahree visited Delhi in October 1981, is nol credible. Even in October 1981, the tenancy period had not yet expired. If there was any sincerity of purpose, the tenant could have moved the court, by bringing forward necessary facts, and not wait till the landlord sought execution in January 1982.

(36) Accordingly, the tenant has no defense on the basis of fraud or misrepresentation. The courts below have thus taken an erroneous view of the matter in allowing objections of the tenant and dismissing the execution application.

(37) It is also not a case where it could be urged that the tenant and landlord were unequal in standing. It has been observed in the cases of Shiv Chander Kapoor, Pankaj Bhargava and even S.B. Noronath that the tenant's plea could may assume some credibility, where the tenant is shown to be in a weaker position vis-a-vis the landlord but not in a case, such as the present one, where the tenant is a partnership Finn with two partners, based in Delhi, whereas the landlord was an employee of a private company, .and that too in Calcutta.

(38) Before parting with this case, I find it necessary to put in focus, the raison d'etre of the provisions of section 21 of the Act as highlighted in the case of S.B. Noronath (Supra), in the following words: ".....PARLIAMENTwas presumably keen on maximising accommodation available for letting, Realizing the scarcity crisis. One source of such spare accommodation which is usually shy is potentially Vacant building or part thereof which the landlord is able to let out for a strictly limited period provided he has some credible assurance that when he needs he will get it back. If an officer is going on other assignment for a particular period, or the owner has official quarters so that be can let out if he is confident that on his retirement be will be able to re-occupy, such accommodation may add to the total lease-worthy houses. The problem is felt most for residential uses. But no one will part with possession because the lessee will become a statutory tenant and, even if bona tide requirement is made out, the litigative tires are so many and the law's delays so tantalising that no realist in his sense will trust the sweet promises of a tenant that he will return the building after the stipulated period. So the law h.is to make itself credit-worthy. The long distance between institution of recovery proceedings and actual dispossession runs often into a decade or more - a factor of despair which can be obviated only by a special procedure. Section 21 is the answer. The law seeks to persuade the owner of premises available for letting for a particular or limited period by giving him the special assurance that at the expiry of that period the appointed agency will place the landlord in vacant possession."

(39) The only pica remaining to he considered is that of creation of a fresh tenancy, as set up by the tenant. This issue does not arise in the second appeal because that finding is in favor of the landlord, in so far as the judgment if Ret control Tribunal is concerned. But there are cross-objections filed by respondents lacing Cm 1935/88 in respect to this finding, which were ordered to be taken up at the lime of disposal of the second appeal. So this plea is to be examined, while disposing of the appeal.

(40) The contention in this respect is that shortly before the expiry of the limited tenanty, the landlord O. Bahree came to Delhi on 12.10.81, and told the tenant that they could continue in the promises after the initial period but by enhancement of rent, and that accordingly an agreement took place whereby rent was increased fromRs.l600.00 tors.l800.00 p.m. with effect from 1.11.81. The plea is that accounts were cleared on the basis of the existing rate of rent up to 31.10.81, and the rent was received by the landlord thereafter at the rate of Rs.1800.00 p.m.

(41) The landlord has denied this fact, and stated that when be came to Delhi to remind the tenant that period of limited tenancy was expiring on 23.10.81, and that vacant possession has to be handed over to him, then a request was made to allow them to continue in the premises for six months to one year on the plea that they were constructing a house which was likely to be ready in that period. It is landlord's further case that he agreed to their continuing for a year or so on the condition that they either approach the court who bad passed the order under section 21 for extension of time which be would not oppose or when he moves an execution application they would make a statement giving an undertaking to vacate the premises after a given lime, and that since the tenant took neither of the steps, there was no concluded contract of extension of tenancy, and that had it been so, he would not have moved the execution application in January 1982.

(42) Apart from the fact that this plea of creation of fresh tenancy should also have been brought to the notice of the court as soon as this agreement took place which, according to the tenant, was before the date of expiry of the limited tenancy, otherwise also, landlord's case that this understanding was subject to the tenant's approaching the court for necessary permission for extension of lime, is borne out on record.

(43) There is no direct evidence as to the exact nature of oral discussion, but landlord's plea is substantiated by subsequent events, firstly that he moved an execution application seeking vacant posssession, which normally he would not have done had there been an agreement of creation of a fresh tenancy, and secondly there is a document on record produced by the respondents themselves which hear out the landlord's plea that this understanding was subject to the approval of the Court because there is a letter (Ex.OW1/1), sent by the appellant's sister to the tenant enclosing a draft agreement to be filed in the court of Rent Controller, slating that to enable the tenant to gel over the difficulty in securing alternative premises, the owner had acceded to their request for extension of period of limited tenancy up to 31.10.82, and that the permission of the Rent Controller for handing over vacant possession on or before 31.10.82, may he accorded. It is specifically written in this letter that the tenant had agreed to this course being adopted. It is pertinent to note that there was no rebuttal in writing to this letter, admittedly received by the respondents. There is thus ring of truth in the explanation of the landlord that the understanding, if any, was subject to the approval of the court. It has been held in the above cited cases that if there is any pica which is available to the tenant including an agreement to continue in the premises, then the tenant had to approach the Rent Controller and get appropriate orders. The landlord had insisted on this. The tenant did not comply with the request of the landlord. There was thus no concluded or completed contract. The mere purchase of stamp paper, which the tenant did, would not amount to anything. What was essential was a concluded contract of tenancy which is lacking in the present case. There is catena of authorities on the view that mere p73 increase of rent does not amount to creation of a fresh tenancy.

(44) This is the view held by the Supreme Court- in the case reported as , Gappulal v. Thakurji Shri Dwarkadheeshji another that mere agreement to reduce or increase rent docs not imply surrender of existing lease or creation of new lease. To the same effect is yet another judgment of the Supreme Court, by a three Judges' bench reported as , N. M. Ponniah Nadar'. Smt. Kamalakshmi Ammnl, that mere variation in quantum of rent or consequential change in the manner of payment of rent does not necessarily import surrender of existing lease or grant of a new tenancy.

(45) In an earlier case reported as , Konchada Ramamurty Subudhi (dead) by his legal Representatives v. Gopinath Naik und others, it was held that even when a compromise decree is passed during pendency of an appeal on the basis of compromise between the partics, it did not necessarily carry the implication of a fresh lease having been created and the real test was intention of the parties as to whether they intended to create a lease or a license. The ratio of this judgment squarely applies to the facts of the present . case because here also the question of intention is involved, and according to the unrebutted case of the landlord, as evidenced by subsequent events, including letter Ex.OW1/1, there was no intention to create a fresh tenancy and the only understanding was that the tenant could continue in the premises for a maximum period of one year subject to obtaining permission of the Rent Controller, which was never done.

(46) In face of the Supreme Court decisions, cited above, the judgments of Allahabad High Court reported as 1971 All. W.R. 253, Shyam Lal v. Murlidhar, and that of Bombay High Court in the case reported as 1986 (2) Civil Lj 272, Jaykishan Jainaruyan Aggarwal v. Vishnu Narayan Sinde and that of Punjab & Haryana High Court in the case reported as Air 1985 Noc 3, Narayan Singh v. Sham Dass, where even full facts were not known, relied upon by Mr. Makhija, have no application, and the view of the Rent Control Tribunal in this respect is not assailable.

(47) The cross-objections are, therefore, liable to be dismissed, and are dismissed accordingly.

(48) As a result, the appeal of the landlord is allowed with costs. Counsel's fee Rs.5,000.00 .

(49) The respondents shall put the appellant in vacant possession of the premises within one month from today.