Narender Kumar Khanna vs Jagdish Prakash Kathuria
1993 Latest Caselaw 183 Del

JUDGMENT

Santosh Duggal, J.

(1) The appellant, Shri Narender Kumar Khanna, is the owner/landlord of premises No.D-241, Ashok Vihar, Phase I, Delhi; ground floor whereof was let out to the respondent, Shri Jagdish Pershad Kathuria, after obtaining permission of the Rent Controller under section 21 of the Delhi Rent Control Act (for short the 'Act'), by order dated 6/7/1978, to create limited tenancy for a period of three years. It is common case of the parties that the tenancy commenced with effect from the date of the order. Draft of the proposed lease deed was annexed with the application under section 21, but no separate lease deed was executed subsequently, and respondent/tenant is in occupation on the same terms and conditions, as contained in the draft lease deed, annexed with the application under section 21.

(2) The aforesaid period of three years expired with effect from 5/7/81. but the respondent did not hand over vacant possession of the premises to the appellant, and eventually during available period of six months, the landlord sought recovery of possession by moving an execution application, which was filed in court opn 18/12/81.The respondent instead of handing over possession, filed objections before the Additional Rent Controller, who was seized of the execution application on 5/11/82. The objections taken were that there was no real sanction under section 21 of the Act, and that the entire proceedings were a make believe exercise vitiated by receipt and collusion, and that the landlord committed fraud on the court, while applying for grant of permission for letting for a limited period, and that the reasons stated in the said application were not correct, and the Rent Controller instead of satisfying himself about the genuineness or authenticity of the reasons stated in the application, allowed the application, and it was a case where permission was granted in a mechanical way, without application of judicial mind, and without satisfying about the existence of the requirements, as laid down in the statute.

(3) In addition, technical objections were taken to the effect that the provisions of section 21 were not available in the case for the reason that Delhi Rent Control Act had not been made applicable to Ashok Vihar. in which area the property was situate, and further that the letting to respondent by means of this permission under section 21 was invalid for the reason that the respondent was already in possession of the properly as a tenant, and rent was being paid @ Rs.575.00 p.m., and that the limited tenancy was created by pretence, and the rent was wrongly shown as Rs.500.00 p.m., and further that the agreement of tenancy was not enforceable, for the reason that lease deed was not registered. It was also pleaded that the application under section 21 and the subsequent execution application were a subterfuge, resorted to by the landlord to pressurise the respondent/tenant to increase rent.

(4) It was further contended that the landlord who, described himself as decree- holder, could not execute the decree for the reason that the grounds now given in the execution application were different than those stated in the application under section 21, and that the premises were otherwise commercial-cum-residential in nature, and were let out as such, and all other statements made by the landlord were false.

(5) The Additional Rent Controller on the basis of affidavits, which were treated as evidence with the consent of the pities, disposed of the execution application by order dated 5/12/83. The plea of the tenant that the provisions of the Delhi Rent Control Act were not extended to the area where tenancy premises were situated, namely, Ashok Vihar, was not accepted, nor the allegation that the premises were of residential-cum- commercial nature, or had been let out for any composite purpose, or that the letting under section 21 of the Act was void for the reason that the respondent was already in possession of the premises as tenant. However, his contention that it was not a case where the landlord genuinely did not require the tenancy premises for his own use for limited period of three years, and that a fraud was practiced on the court by stating so. and the fact that the landlord did not require the premises for his residence on the expiry of the limited period was accepted in view of the statement made by him in the execution application to the effect that he intended to extend his small scale business by utilising the tenancy premises with the assistance of his daughter, who had grown up by that time, which meant that the premises were never required by the landlord for his residence, and to that extent, the grounds given in the application under section 21 were false. The execution application was dismissed accordingly.

(6) These findings were confirmed by the Rent Control Tribunal in the first appeal filed by the landlord, namely, that resort to section 21 of the Act was a fraudulent exercise on the part of the landlord, to which the tenant had to consent, and that the Rent Controller's order granting permission under section 21 stood vitiated because of this fact. and consequently not executable.

(7) In this second appeal, it has been pleaded that both the courts below have committed error by analysing the grounds firstly stated in the application under section 21 and thereafter in the execution application. It is contended that the landlord was not required to give any reason at all while seeking permission, nor the Rent Controller required to analyze or scrutinise the same, and further that the purpose for which tenancy premises were required, was not at all relevant or material, and in case there was a valid permission in favor of the landlord, under the provisions of section 21 of the act, then he has to be put in possession on the expiry of the limited period.

(8) During hearing in this second appeal, Ms. Ahmedi, appearing for the appellant, has reiterated these pleas by placing reliance on the Supreme Court judgment in the case of Smt. Shisht Dhawan vs. M/s. Shaw Brothers, , which summed up the entire case law on the subject of respective rights of the landlord and tenant, once recourse has been Liken to the provisions of section 21 of the Act, by taking note of catena of judgments, particularly, in the case of Yamuna Maloo vs. Anand Swarup , Shiv Chander Kapoor vs. Amar Bose, and Pankaj Bhargava and another vs Mohinder Nath and another, , where after discussion of the principles enunciated in earlier decisions, the apex court endorsed the proposition laid down in the case of Pankaj Bhargava (supra) to the effect that ordinarily a permission under section 21 of the Act is in the nature of a judgment-cum-decree, and not open to challenge on the ground of invalidity or illegality, or any other collateral ground, and further that as held in the case of Shiv Chander Kapoor (supra) that in case the tenant seeks to assail the permission under section 21 of the Act on the ground of falsehood or fraud, perpetrated by the landlord, then he must come with his objections during the subsistence of the tenancy, and he cannot be heard to raise objections to execution after availing of full period of limited tenancy, and only in reply to the execution application sought by the landlord, unless there was some jurisdictional fact which would render the permission under section 21 abinitio void or illegal. These in the latest decision in Shisht Dhawan's case, (supra), have been spelt out to mean only two eventualities; namely, that the letting was not for residential purpose or that the premises were not vacant for letting for only a limited period, as stated in the application under section 21 of the Act.

(9) In the present case, the sum and substance of the objections of the respondent is that the landlord has resorted to falsehood and had perpetrated a fraud on the court by stating that he would not require the premises for a short period of three years, and would genuinely require the same thereafter, and that the court also instead of scrutinising the correctness of the grounds stated, mechanically proceeded to grant permission. These are objections which come squarely within limits contemplated in the Judgments of the Supreme Court particularly in Pankaj Bhargava's case (Supra) Shiv Chander Kapur's (Supra) and Shisht Dhavan (Supra).

(10) This Court also in a very recent case arising out of the provisions of Section 21 of the Act reported as Shri O.Bharee Vs. M/s Rikhi Bros. , on the authority of Supreme Court Judgment held that in case a tenant has objection to the landlord' sprayer for being put back in possession, on the expiry of limited period of three years on the ground of fraud or receipt, perpetrated by the landlord, then he must approach the court during the subsistance of the tenancy, unless of course, he can show that there were grounds for resisting landlord's prayer for being put back in possession, which were not within his knowledge at any time during the period of subsistance of the tenancy.

(11) There is not a whisper of suggestion in the present case in the objections that there has been any new fact after expiry of limited tenancy that came to the knowledge of the respondent and that he could not have taken the objection on the ground of fraud or falsehood or mechanical exercise of power on the part of the Rent Controller during the subsistance of tenancy period. He does not even plead in the objections any where that he was in any unequal status of bargaining with the landlord, or that he was pressurised to become a party to the grounds seeking permission on false ground.

(12) The only facts pleaded are that the landlord's requirement is not such that he would have required the tenancy premises for occupation after expiry of three years. It is on record that the tenancy premises are on the ground floor, and the landlord was residing on the first floor of the house. Thus, from the date of letting, the tenant would have been aware of the status of the family of the landlord, and there is no such fact which can be pleaded to have come to his knowledge subsequently.

(13) Same proposition has been reiterated in a judgment of this Court reported as Oriental ExpressCo. Pvt. Ltd. vs. Smt. Usha Pasricha, . It has also been held in another judgment reported as Raj Kumari Walia vs. P. N. Premanandan, , that permission under section 21 of the Act is in the nature of self-executing order, and that section 21 provides a self contained procedure and no challenge to the validity of the permission under section 21 of the Act can be entertained after the expiry of the limited period, unless of course on some new facts, coming to the knowledge of the tenant subsequently.

(14) In the above referred case, this Court also took note of the fact that it was pertinent that the tenant had not come up with objections during the subsistence of the limited tenancy, but after the landlord took out execution, and that too by evading service as far as possible. Same is the situation here where the limited tenancy period expired with effect from 5/7/81. The landlord after waiting for about 5 months, sought possession of the premises by filing execution application on 18/12/81, and it took almost one year for the service of the respondent, when he eventually appeared, and Filed objections.

(15) This is a glaring example of the mala fide on the part of the tenant/respondent to resist delivery of possession, as far as possible, and when he was constrained to come to Court, filed objections on question of fact, which were all within his knowledge during the period of the tenancy.

(16) Mr. Duggal appearing for the respondent, has endeavored to make it out to be a case distinguishable from the decided cases, as the landlord himself, in the execution application, stated that he wanted to utilise the tenancy premises, on getting vacant possession, for the purposes other than residence, and that this made out a case, on landlord' sown admission of the premises not being put to any residential use, after vacant possession was obtained by the landlord. This, according to the learned counsel, is a factor which would invalidate the initial permission granted under section 21 of the Act.

(17) Ms. Ahmedi replied to this on the strength of a judgment reported as 1974 Rcr 314, R.M.L Bhatnagar, Lt.Col. (Retd.) vs. Shri Inder Prakash and others, that the nature of the landlord's requirement when he gets vacant possession of the premises pursuant to the order passed under section 21 of the Act was not, at all, relevant inasmuch as this was not the requirement of section 21 that the landlord has also to show that after getting vacant possession of the premises he required the same for residential purposes. This judgment has gone to the extent of saying that the landlord may require vacant possession, after expiry of the limited period, for sale or for letting to some other person, and once permission under section 21 had been granted, then the nature of the subsequent user of the premises, by the landlord, on getting vacant .possession, was not relevant.

(18) I am in respectful agreement with this for the reason that, as already observed, section 21 is a self contained Code. lt now here requires that the landlord must satisfy the Court that he required vacant possession of the premises for residential purposes. It is also settled by now that the ingredients of section 21are altogether different from those laid down in clause (e) to provision to sub-section (1) of Section 14 of the Act, and that proof of bona fide requirement of the tenancy premises for residence, on vacation by the tenant is a necessary ingredient to be satisfied in a petition under section 14(1)(e), but those requirements cannot be imported into provisions of section 21 of the Act. It has been so held in the case of Shiv Chander Kapoor (supra) and by this Court in the case of Oriental Express Co. Pvt. Ltd., (supra).

(19) The only jurisdictional fact, as summed up in the case of Smt. Shisht Dhawan (supra), is that the letting of the premises to the tenant must be for a residential purpose, and the premises are vacant for letting. There is a concurrent finding of both the courts below that these two conditions existed in the present case inasmuch as the premises were of a residential nature, and the tenancy was also for residential purposes, and vacant at the time. In fact, tenant's objections had been dismissed in this respect, and there were no cross-objections, at any stage.

(20) The courts below, therefore, took an erroneous view of the matter by dismissing the appellant's execution application on the grounds of fraud or taking note of what was stated in the execution application.

(21) The only contention that remains to be examined is, as put forward by Mr. Duggal at the fag end of the arguments, that of plea of waiver, which is sought to be taken up by means of an application under order 41 Rule 27 Civil Procedure Code, to the effect that the landlord should be deemed to have "waived his right to get possession of the tenancy premises by virtue of the permission under section 21 of the Act, for the reason that subsequent to the expiry of the limited period, he filed an eviction petition under section 14(1)(a) of the Act on the basis of non-payment of rent for the period from 1/1/82 to 30/4/83. The learned counsel for the appellant did not object to this plea being taken, saying that it could be considered at the time of final hearing. It transpires that the said eviction petition was filed during the pendency of the objections before the Additional Rent Controller, as the order dismissing the execution application was passed on 5/12/83, whereas the eviction order under section 14(1)(a) was filed sometime before that because the eviction petition is registered in the year 1983, although both the learned counsel are not able to give the actual date of filing of the eviction petition. That being so, there is no subsequent event that had come to the notice of the tenant to justify this application under section 41 Rule 27 Civil Procedure Code. because, as already noted, the eviction petition was filed even before the execution application was disposed of.

(22) Be that as it may, the ground having been allowed to be taken with the consent of the learned counsel for the appellant, Mr. Duggal has argued in respect to this. His main plea is that by demanding rent for the period subsequent to the expiry of the limited period, the appellant, as landlord, has to be treated to have waived his right to say that the tenancy was for a limited period or stood expired on the expiry thereof.

(23) Ms. Ahmedi, on the other hand, has placed reliance on a judgment of this court reported as 1987(1) Rcj 28, Atma Steels (P) Ltd. vs. Harbir Singh, where it has been expressly held that the relationship of landlord and tenant does not come to an end merely on the expiry of the period of limited tenancy, and that it continues to be subsisting till the tenant vacates or hands over vacant possession to the landlord. This finding was given by the learned Single Judge on an application that had been moved under section 15(2) of the Act during pendency of the execution proceedings under section 21 of the Act. On the same analogy would be the eviction petition under section 14(1)(a), and merely because the landlord relied on non-payment of rent, as a ground, would not lead to an inference that he waived his right to avail of the permission under section 21 of the Act, particularly when said eviction petition had been filed even when this execution application was pending, and he has nowhere given up his right, but rather tenaciously pursued the same by filing first appeal, and then second appeal.

(24) This plea of waiver is thus not available to the tenant.

(25) No other ground has been urged on behalf of the respondent.

(26) As a result, I allow the appeal and hold the appellant entitled to vacant possession of the tenancy premises pursuant to the order under section 21of the Act passed on 6/7/78. The appeal is allowed with costs. Counsel's fee Rs.2,000.00.

(27) As a consequence of the appeal being allowed, the execution application filed by the appellant shall stand revived, and he will be entitled to warrant of possession in the said execution application that had been filed on 18/12/81. The respondent is, however, given one month's time to hand over peaceful vacant possession of the tenancy premises to the appellant, failing which the appellant shall be entitled to take out warrant of possession.

(28) Case records including execution file be sent back to the concerned court Along with a copy of this judgment.