Sh. S.B. Chatterjee vs Smt. Meena Ahuja
1995 Latest Caselaw 170 Del

JUDGMENT

1. This a Second appeal against the order of the Rent Control Tribunal setting aside the order of the Rent Controller dimissing objections of the tenant to the Execution application of the landlord which was filed on the expiry of the limited tenancy which was created with the permission of the Rent Controller under Section 21 of the Delhi Rent Control Act (hereinafter referred to as the "DRC Act").

2. Briefly stating the facts of the case are as under:--

On 30th October, 1981, the landlord-appellant moved an application under Section 21 of the D.R.C. Act seeking permission of the Rent Controller to let out the permises in dispute being House No. EA/17 Inder Puri, New Delhi-12 on the terms and conditions set out In the proposed agreement annexed to the petition which proposed agreement is signed by both the parties. Clause -- (2) of the said Annexure to the petition reads as under:--

"(2) That the premises shall be used for residential purposes by the lessee and the members of her family and for no other purpose. If the premises is used by the lessee other than residential purpose, in will be entirely at her own risk and cost and the lessor shall not be liable for any damage whatsoever for such user. The lessee has also agreed to vacate the premises as she will not require the same after three years."

3. After the petition was filed, the statements of both the parties, i.e. the landlord and the proposed tenant were recorded which read as under:--

"Statement of Sh. S. B. Chatterjee aged about 68 years, petitioner on S.A. :

I am the owner of property No. EA/17 Inderpuri, New Delhi and I want to let out the entire house excepting the terrace thereof as shown in site plan Ext. A1 to the respondent for residential purposes only for a limited period of 3 years w.e.f. 1-11-1981 on a monthly rent of Rs. 1000/- p.m. The proposed lease agreement is Ext. A2. I shall require the premises after the expiry of 3 years as at present I want to live with my son and my son is likely to be transferred out of Delhi after 3 years and then we will have to vacate the present accommondation. I have never let out this premises earlier nor moved any application under Section 21 of the DRC Act. There is no collusion or fraud. My petition is correct."

"Statement of Smt. Meena G. Ahuja, respondent on S.A.:--

I have heard the above statement of the petitioner and admit the same to be correct. I want to take the premises for residential purposes only for a limited period of 3 years and undertake to use the same as residential and further undertake to vacate the same after the expiry of 3 years. There is no collusion. I have gone through the contents of the petition and admit the same to be correct."

4. After recording said statement, the Rent Controller recorded her findings as under:--

"In view of the above statements of the parties, I am satisfied that there is no collusion or fraud. I am also satisfied that the petitioner does not require the suit premises for a limited period of 3 years. Permission, therefore, is hereby granted to the petitioner Sh. S. B. Chatterjee to let out his premises No. EA/17. Inderpuri, New Delhi, the details of which are given in the site plan Ext. AI to the respondent for residential purposes only for a limited period of 3 years with effect from 1-11-1981. The file be consigned to Record Room."

5. It may be pertinent to note that at the time when the premises were let out to the respondent for limited period, she was running a school under the name and style of Florence Public School from the premises at C-52 Narain Vihar, New Delhi, which she is still running from the same premises. On the expiry of the term of 3 years, the appellant demanded possession and when it was not handed over, he moved the Rent Controller for execution for seeking possession of the premises. On the said application being filed notices were issued and in response thereto the respondent-tenant filed the objections on 8-2-1985 which is admittedly beyond the period of limited tenancy which was created in favour of the respondent. The respondent has taken mainly two objections -- (i) that the premises in dispute were let out for running a school and the premises have been used for running of the School from the very inception of the tenancy and a school under the name and style of Florence Public School has been running in the said premises, and (ii) that the proposed lease agreement dated 29-10-1981 by the words which follows the first sentence clearly shows that the premises were not let out for residential purposes and the permission obtained by the petitioner was a fraud on the provisions of the DRC Act for the reasons, inter alia, that the appellant concealed the true purpose of letting from the Court, he did not disclose any special reason as to why he would not require the premises in dispute for 3 years.

6. According to the respondent, the three conditions, i.e. (i) the landlord does not require the premises for a particular period for which he must give special reasons as to why can let out the premises for a limited period only, (ii) that the letting must be for residential purposes only and not for non-residential purpose, such as running of school and, (iii) that the Controller must grant permission for creation of such limited tenancy. According to the respondent a big fraud was played upon the Court and also on the respondent. Substantial evidence was led by parties whereafter, the Rent Controller, after hearing both the parties, dismissed the objections by a detailed order. Feeling aggrieved against the said dismissal, the respondent filed an appeal, which was upheld by the Rent Control Tribunal and the order of the Rent Controller was set aside.

7. I have perused both the judgments and have gone through the evidence as well. Lengthy arguments were addressed by both the parties. I have perused the documents and some of the facts which strike at the outset are -- that in the statement of Mr. B. N. Bose (DHW 4), he has clearly stated that there was no school running in the premises and for the first lime he saw the Board of the school in November, 1984. It is absolutely inexplicable as to how the Rent Control Tribunal in the face of this specific statement found that "instead the respondent examined B.N. Bose, DHW3, who stated that he saw the sign board of the school at the disputed permises in November/December, 1984, but conceded that the school was run in the premises before".The Statement of this witness is as under :--

"I have seen the school board for the first time in November/December, 1984 in the premises.

CQ. : I have no knowledge of any school being run before that date,"

8. In the light of this, finding/inference of the Tribunal on this point is contrary to the evidence and, therefore, is perverse, I find also from the record that in the Bye-laws and objects of the Education Society floated by the respondent, the respondent's name is shown amongst the promoters and her residential address is shown to be the premises in dispute. Some of the Registers produced such as fee register which was stated to be dated November 2, 1981, on even a cursory glance clearly show that the entire register was written in the same ink, same handwriting and apparently at the same time and consequently, counsel when asked about this fact during the arguments, counsel could offer no explanation. These records appear to have been fabricated. The other Registers have only slip of papers attached on top of the register and the same is the case with Ext. P-18 to show that they relate to school in the premises in dispute. Even the Tuition Fee Register has the name of the school and the address written in the blank space and not at the space provided for it. Same is the case with Teachers Attendance Register. In any event, it will not be necessary to go into this question any further for the purpose of this case except to notice two more facts that the bank account with a bank in Inderpuri in the name of the Florence Public School, Inder Puri, was opened only on 8-12-1983 whereas the bank account in the name of the school which was admittedly being run by the respondent at C-52 Naraina Vihar was opened as early as 3-12-1980. Another fact to be noted is that the respondent's husband owns a house in Panchisheel Park which he had been letting out from time to time after obtaining permission under Section 21 for a limited period only. As such it could not be accepted that the Respondent was unaware of the consequences of such limited tenancy as has been tried to be made out by the respondent.

9. Furthermore, despite repeated questions from the Court, counsel for the respondent could offer no explanation for the extra ordinary delay in filing the objections. What prevented the respondent from challenging the permission granted by the Rent Controller until the landlord filed application for execution after the expiry of the period of limited tenancy and they were given notice of the execution by the Rent Controller, is not explained.

10. Counsel for the appellant has laid stress on the law laid down in various authorities of the Hon'ble Supreme Court and this Court, particularly, the cases of J.P. Vohra v. India Export House Private Ltd. , Joginder Kumar Bhutan v. R. P. Oberoi , Inder Mohan Lal v. Ramesh Khanna , Yamuna Maloo v. Anand Swarup , Prem Narain Baijal v. Onkar Nath Moorli reported as 1992 (2) RCJ 1, Sunil Puri v. M/s. Modi Spinning & Weaving Mills Comp. Ltd. reported as , Sh. Navendar Kumar Khanna v. Sh. Jagdish Prasad Kathuria reported as 1993 (2) RCJ 269, Sh. Gopi Krishan Bubna v. M/s. Arjun Gaurav Trust reported as 1993 (2) RCJ 489, Sh. Hardit Singh Chadha v. Jagtar Singh Grover reported as 1993 IV AD Delhi 501. The Hon'ble Supreme Court in the case of Shrisht Dhawan v. M/s. Shaw Bros has considered various judgments and after considering its earlier judgments was pleased to lay down as under:--

11. The law on the procedural aspect was laid down as under:--

(1) Any objection to the validity of sanc-

tion should be raised prior to expiry of the lease.

(2) The objection should be made immediately on becoming aware of fraud, collusion etc.

(3) A tenant may be permitted to raise objection after expiry of lease in exceptional circumstances only.

(4) Burden to prove fraud or collusion is on the person alleging it.

12. On the substantive safeguard, the law as settled by the authorities mentioned here inabove and summed up in the aforesaid decision of the Hon'ble Supreme Court in the case of Shrisht Dhawan (supra) is as under :--

"(1) Permission granted under Section 21 of the Act can be assailed by the tenant only if it can be established that it was vitiated by fraud or collusion or jurisdictional error which in context of Section 21 is nothing else except fraud and collusion.

(2) Fraud or collusion must relate to the date when permission was granted.

(3) Permission carries a presumption of correctness which can be permitted to be challenged not only by raising objection but proving it prima facie to the satisfaction of Controller before landlord is called upon the file reply or enter into evidence.

(4) No fishing or roving inquiry should be permitted at the stage of execution.

(5) A permission does not suffer from any of these errors merely because no reason was disclosed in the application at the time of creation of short term tenancy.

(6) Availability of sufficient accommodation either at the time of grant of permission or at the stage of execution is not a relevant factor for deciding validity of permission."

13. In the light of the aforesaid statement of law the objections to the validity of sanction should be raised at the earliest opportunity and in any case prior to the expiry of the lease which is not the case here. Secondly fraud and collusion has to relate to the date when the permission was granted and the objections have to be made immediately on becoming aware of the fraud, collusion etc. which also is not the case here.

14. The only exceptional circumstances in which a tenant may be permitted to raise objection after the expiry of such lease could be where the tenant became aware of the fraud subsequent to the expiry of the lease. No such plea is raised nor in anything shown to me which would go to show that the respondent was not aware of the importance of her statement before the Court or the terms at which the premises were let out because she has herself signed on the proposed agreement which was annexed to the application under Section 21 of the DRC Act nor has the respondent succeeded in showing as to how the sanction was not validly given. In any event if she did not believe what she stated in Court to be true, she had all the time available to her during the term of limited tenancy to raise the objection and challenge the order of the Rent Controller granting the application under Section 21 of the D.R.C. Act. The plea is clearly an afterthought and mala fide and warrants outright rejection. In my opinion, both the Courts below have erred in not noticing the impact of the delay in filing the objections and in permitting such lengthy evidence being led.

15. Counsel for the respondent has mainly rested his arguments on the plea that any decision on facts reached by the first appeallate Court is final and the High Court cannot look into the same and has cited Matulal v. Radhe Lal , and Kailash Kumar v. Dr. R. P. Kapur reported . He appears to have put a very extreme proposition that even an inference of law based on facts proved or contrary to the evidence proving the facts cannot be interfered with. It is settled law that a conclusion based on misreading of evidence and misconstruction of a document is a question of law and can be corrected in second appeal. A reference in this regard is made to the decisions (sic). Similarly, the ordinary meaning of words is a question of fact but the effect of the words is one of law. Reliance in this regard is placed on the decision reported as AIR 1928 PC 243 (245) and AIR 1950 East Punj 90 (91) in the present case I find that the inferences of the first appellate Court are perverse and it has reached an inference contrary to and/or based on misreading of evidence on record. Therefore, in the present case also such errors can certainly be corrected by the High Court in the second appeal. In any case, I feel that in the face of the law laid down by Hon'ble Supreme Court wherefrom the aforesaid principles emerge, I find that no case for entertainment of the objections was made out since they appear to be in the nature of an afterthought, lacking in bona fides and were filed very much beyond the period of limited tenancy created. The Tribunal has also been misled by the argument that the permises were not let out for residential purpose. Such finding is also contrary to the facts on record (including statement of the parties) and is contrary to the evidence.

16. In the face of her own statement and in the face of Clause 2 of the proposed agreement which is signed by her and is an annexure to the application under Section 21 of the DRC Act after the expression "that the premises shall be used by the lessee for residence only and members of her family and for no other purpose." Addition of the words "if the premises is used by the lessee other than residential purpose it will be entirely at her risk and costs and the lessor shall not be liable for any such user" have been read out of the context and that addition is no indication of the fact that the lease was for a purpose other than residential.

17. It is very unfortunate that a party who had become entitled to possession in 1984 had to fight on for more than 10 years to recover the possession and unscrupulous tenant was successful in evading delivery of possession in accordance with the terms of the limited tenancy and the sanction of the Rent Controller.

18. For the aforesaid reasons, I am of the opinion that the impugned order cannot be sustained and the same is set aside with costs throughout. The Rent Controller is directed to issue warrants of possession forthwith with authority to the bailiff to break open the locks, if premises are found locked and with further authority that in the event of any resistance, to avail of police help for putting the appellant into possession of the premises in dispute.

19. The appeal is allowed in the aforesaid terms.

20. Appeal allowed.