Gillanders Arbuthnot & Co. Ltd. vs Maya Kapoor
1995 Latest Caselaw 813 Del

JUDGMENT

Mohd. Shamim, J.

(1) Realizing thus the importance of home, the legislators in their wisdom amended Delhi Rent Control Act for providing certain class of people speedy and expeditious trial of their cases in order to enable them to secure possession over the tenanted accommodation and thus to have roofs over their heads. Thus they incorporated Sections 14-A, 14-B, 14-C, 14-D in Delhi Rent Control Act by Act No. 57 of 1988.

(2) The respondent herein who is a retired government servant availed of the said opportunity and came forward with a petition under Section 14-C for recovery of possession over premises bearing No. F-8/18, Vasant Vihar, New Delhi, shown in the plan Ext. Ph annexed with the petition.

(3) While the said petition was pending respondent/petitioner ( hereinafter referred to as the respondent for the sake of brevity ) moved an application under Order Xii Rule 6 of the Code of Civil Procedure. The said application was allowed vide order dated July 17,1995 and an order of eviction was passed in favor of the respondent for recovery of possession over the tenanted accommodation, alluded to above, against the petitioner / respondent (hereinafter referred to as the petitioner for the sake of convenience ).

(4) Aggrieved and dis-satisfied with the said judgment and order the petitioner have approached this court through the present revision petition.

(5) Learned counsel for the petitioner Mr. Mukul Rohtagi has contended with great zeal and fervour that the learned lower court fell into a grave error by coming to the conclusion that there were clear, uneqivocal, unambiguous admissions on the part of the petitioner in their written statement and other documents placed on record with regard to the case of the respondent and as such she was entitled to a decree under Order Xii Rule 6 CPC. According to the learned counsel there was a serious question of law involved in the instant case with regard to the construction which was to be placed on the lease deed dated 26th October, 1979. Counsel for the petitioner has urged that the said document came up for interpretation in between the parties in a case petition No.E-1171/85 before Additional Rent Controller, Mr. M.K.Gupta who opined that the said document was executed for the sake of convenience only in between the parties. In fact according to him there were two tenancies in respect of the two portions i.e. the ground floor and the first floor and two separate lease deeds were executed in connection therewith. Hence the court has construed amiss the afore-mentioned lease deed whereby he held that there was only one tenancy.

(6) Learned counsel for the petitioner has contended that the respondent filed a petition for eviction under Section 14-C of the Act against the petitioner. The petitioner applied for leave to defend the said petition. The leave to defend was granted to the petitioner on the ground that the petitioner have raised certain points which if proved would disentitle the respondent from recovering the possession over the disputed premises ( vide order dated September 23,1992). What weighed with the learned Additional Rent Controller in granting leave was that the questions with regard to the fact whether there were two tenancies or one tenancy and as to whether the earlier tenancies were surrendered and superseded by a fresh tenancy dated October 26,1979 were to be gone into.

(7) In the above circumstances the respondent was not entitled to an order of eviction as passed by the learned Rent Controller under Order Xii Rule 6 Code of Civil Procedure.

(8) Learned counsel for the respondent has on the other hand has vehemently argued to the contrary.

(9) Since the fate of the present revision petition hinges on an interpretation of Order Xii Rule 6 of the Code of Civil Procedure ( Civil Procedure Code for short ) the provisions of the said Order can be adverted to with profit. It is in the following words:- .lm2" "JUDGMENT on admissions. 6.(1) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions. (2) ..............."

(10) It is crystal clear from above that the Court is competent to pass such orders or judgments under the provisions of the law, alluded to above, which it thinks fit in the circumstances of a given case. However, the condition precedent for passing such an order or judgment is that there must be admissions which should be unequivocal, un-ambiguous and clear cut on the part of the party against whom the judgment or order is made. Such admissions can be either orally or in writing, whether in the pleadings or otherwise in other documents other than the pleadings which have been placed on record. It is also abundantly clear from above that this power to pass a decree under Order Xii Rule 6 of the Civil Procedure Code is discretionary.

(11) This Court is supported in the above view by the observations of a Division Bench as reported in Union of India v. M/s Feroze and Co., ( Air 1962 J & K 66),...."A judgment on admission under O.12 R.6 is a matter of discretion and not a matter of right and the Court would not entertain an application for such judgment when the case involves questions which cannot be conveniently dealt with in a motion under the rule. In order that a judgment may be obtained under O.12 R.6 the admission must be unconditional, clear and unequivocal".

(12) To the same effect is the view given vent to by a Single Judge of this Court as reported in State Bank of India v. M/s Midland Industries and others, . The above view is also fortified from the observations of a Single Judge of the Himachal Pradesh High Court as reported in M/s Simla Wholesale Mart v. M/s Baishnodas Kishori Lal Bhalla and others, .

(13) Now the question which comes to the tip of the tongue is as to whether the court below was justified in passing judgment and order under the provisions of law adverted to above in the instant case. The respondent herein filed a petition under Section 14-C of the Delhi Rent Control Act which reads as under:- "(1)Where the landlord is a retired employee of the Central Government or of the Delhi Administration, and the premises let out by him are required for his own residence, such employee may, within one year from the date of his retirement or within a period of one year from the date of commencement of the Delhi Rent Control (Amendment) Act, 1988, whichever is later, apply to the Controller for recovering the immediate possession of such premises. (2)........... (3) Where the landlord referred to in sub-section (1) or sub-section (2) has let out more than one premises, it shall be open to him to make an application under that sub-section in respect of only one of the premises chosen by him".

(14) A close scrutiny of the relevant provision of law adverted to above, shows that a landlord in order to enable him to recover possession over the tenanted accommodation must prove the following: (a) He must be a retired employee of the Central Government or of Delhi Administration, (b) the tenanted accommodation let out by him is required for his own residence and (c) the said employee must come forward with a petition for eviction within one year from the date of his retirement or within a period of one year from the date of commencement of the 1988 Act, whichever is later.

(15) Let us now see as to how far the respondent herein has proved the above laid down ingredients. The respondent in para 18(A) of her eviction petition has stated that she retired as a Vice Principal of a Government Girls Senior Secondary School, Idgah Road, Delhi, on February 28,1987. The petitioner have not denied the said fact in the corresponding para of their written statement that the petitioner is a retired employee of the Delhi Administration. The present eviction petition was filed on July 24,1989 i.e. within one year from the date of the amendment. The amendment came into force on December 1,1988. Thus it is clearly within time. Therefore, the defense raised in the corresponding para of the written statement that the respondent is not entitled to the benefit of Section 14-C(1) is not tenable.

(16) The respondent has alleged in para 18(C) of the eviction petition that she has no other residential accommodation in Delhi or elsewhere. She at present is residing with her nephew at Mandakini Enclave, New Delhi per force as the petitioner are refusing to vacate the disputed premises. She has further stated in para 18(E) that she is forced to live in a drawing room as a refugee although she is the owner of a huge house, being the tenanted accommodation. The petitioner in their reply have contented themselves by stating that since the petitioner happens to be a spinster, having no family members or dependent she does not require the whole house for her own use and occupation bona fide. It has further been admitted that the respondent had been living alone in the government accommodation consisting of one bed room, one drawing-cum-dinning room since 1979 on paying a rent of Rs. 114.00 per month only.

(17) Para 11 of the eviction petition deals with the rate of rent. It has been stated therein that the premises were let out on a monthly rent of Rs. 2500.00 excluding water and electricity charges. The petitioner in their written statement have admitted this fact. According to them, the consolidated rent for both the floors of the property is Rs. 2500.00 p.m. Para 14 of the eviction petition relates to the execution of the lease agreement dated October 26,1979. The execution of the said lease deed in the corresponding para of the written statement has not been denied.

(18) The respondent has stated in para 8 of the eviction petition that the entire house i.e. the disputed premises bearing No. F-8/18, Vasant Vihar, New Delhi, was let out as shown in the site plan annexed with the petition. The petitioner in the corresponding para of the written statement in reply to the said paragraph have stated that there were two separate and independent tenancies with separate rent agreed to and paid for each of the floor in the premises.

(19) Learned counsel for the petitioner Mr. Mukul Rohatgi, Senior Advocate, on the basis of the above averments in the written statement has contended that the defense as put forward by the petitioner in their written statement is that there are two separate tenancies in existence and as such, the learned Rent Controller was not justified in coming to the conclusion that there was one single tenancy. Consequently, according to the learned counsel there was no un-equivocal and un-ambiguous admission on the part of the petitioner. Hence the application under Order Xii Rule 6 of the Civil Procedure Code could not have been allowed.

(20) Learned counsel for the respondent,Mr. Amarjit Singh Chandhiok, on the other hand, has led me through an application dated May 3,1991 moved by the respondent under Section 151 CPC. The learned counsel has argued on the basis of the said application that the petitioner have admitted therein the entire case of the respondent. It has been admitted therein that the petitioner is a retired government servant. She had been living in a tenanted accommodation at the rate of Rs. 114.00 per month. Curiously enough the petitioner herein do not talk of two separate tenancies though they talk that two tenancies existed in the past in regard to two separate portions of the said house. They further requested the court through the said application that the court may pass appropriate orders to give such portion of the tenanted accommodation to the respondent which is deemed fit and proper in the circumstances of the present case. Thus, the learned counsel for the respondent contends,in view of the above, that the petitioner have admitted the case of the respondent in toto and there is nothing strange that an order of eviction was passed against the petitioner in respect of the entire house.

(21) Learned counsel for the petitioner has, on the other hand, contended that there are two separate tenancies. The petitioner initially took on lease the ground floor in the disputed premises for a period of five years from one Satpal Kapur w.e.f. April 1,1973 on a monthly rent of Rs. 1000.00. The said Satpal Kapur died on October 25,1973. He bequeathed his portion of the property i.e. the entire ground floor in favor of the respondent. The respondent did not object to the lease deed in favor of the petitioner. Instead she executed a lease deed in favor of the petitioner on July 7,1975 for the un-expired i.e. from April 1,1975 to March 31,1978. The first floor was under the tenancy of one M/s Waldies Ltd., Calcutta w.e.f. April 1,1973 on a monthly rent of Res. 1000.00. The said company vacated the portion of the premises in their occupation and handed over the possession to the respondent on December 31,1975. The said portion was then let out by the respondent to the petitioner from January 1,1976 on the same terms and conditions as it was let out to the said M/s Waldies Ltd. for un-expired period of the lease i.e. for a period of two years and three months on a monthly rent of Rs. 2000.00. The petitioner requested for the renewal of the lease deed in respect of the first floor for a period of one year i.e. from April 1,1978. Similarly, a request was made for the renewal of the lease deed of the ground floor for a period of one year from April 1,1978. The respondent agreed for the extension of the said two lease deeds for a period of one year. Thus the lease deed in respect of both the portions came to an end on March 31,1979.

(22) It is manifest from above that the petitioner never surrendered the tenancy of both the premises and continued to occupy the same. The respondent thereafter executed a fresh lease deed for a period of five years w.e.f. April 1,1979 on a monthly rent of Rs. 2500.00. Learned counsel for the petitioner on the basis of the above has argued that in fact there were two separate lease deeds in respect of the two separate portions. The lease deed dated October 26,1979 was executed for a matter of convenience only in favor of the petitioner. The learned counsel in support of his argument has placed reliance on the judgment dated October 14,1993 passed by the Additional Rent Controller who was of the view that the lease deed dated October 26,1973 was executed only for the sake of convenience. The learned counsel thus having drawn an inspiration from the said judgment contends that this is a serious question of law which was required to be gone into. Hence the impugned eviction order passed on the application under Order Xii Rule 6 Civil Procedure Code is unwarranted, uncalled for and not justified in the circumstances of the present case.

(23) Learned counsel for the respondent, on the other hand, has contended that it is a well settled principle of law that once the terms of a contract in between the parties have been reduced to writing no oral evidence can be led to show to the contrary. Such evidence would be barred by the provisions of Section 92 of the Evidence Act.

(24) I find myself in perfect agreement with the learned counsel for the respondent.

(25) To the same effect is the view given vent to by a Single Judge of this Court in Laxmi Iron & Steel Co. v. Prem Chana, 1993 Rlr 424, ..." Nevertheless, Mr. Makhija has submitted that the lease deed executed between the respondent and the petitioner Company has been proved on record as Ext. AW1/4, and there is a clear stipulation in Clause 6 of this lease deed that the premises would be used for purpose of only residence of the officers of the company. In face of these written terms of the contract between the parties, no oral evidence to the contrary can be admitted or entertained, in view of provisions of Section 92 of the Evidence Act".

(26) There is another side of the picture. A careful scrutiny of the terms of the said lease deed adverted to above reveals that the respondent herein agreed to let out to the lessee house No. F-8/18, Vasant Vihar, New Delhi. There is no mention therein of the separate portions which were proposed to be let out to the lessee. Admittedly, earlier to the lease deed in question two separate lease deeds were being executed in respect of two separate portions and this thing continued up to March 31,1978 and the lease deed in question was executed subsequently which was to come into operation from April 1,1979 and was to remain in operation for a period of five years ( vide para 1 of the lease deed). It is amply clear from the said para that the entire house was let out through the said lease deed for a period of five years. The house No. F-8/18,Vasant Vihar, New Delhi which is the subject-matter of the said lease deed has been referred to as the 'demised premises' which implies thereby that there was an intention on the part of the Lesser to let out the entire house. Similarly, we can gather an intention on the part of the petitioner to take on rent the entire house as the said lease deed bears the signatures of both i.e. the Lesser and the lessee. It is true that there is a mention in the said lease deed with regard to the extent of the accommodation which is on the ground floor and the extent of the accommodation which is on the first floor. However, a mere description of the accommodation in a tenanted premises does not and can not lead us to the conclusion that there are two separate tenancies as argued by the learned counsel for the petitioner.

(27) It is abundantly clear from above that a fresh lease deed dated October 26,1979 was executed between the parties whereby all the previous agreements/ lease deeds were superseded. Hence the parties were to be governed by the terms and conditions enumerated in the said lease deed. The petitioner herein moved an application under Section 151 Civil Procedure Code where through it was prayed that the respondent be given such portion of the premises in suit which is deemed fit and proper in the circumstances of the present case.

(28) Now the question which arises for determination is as to what sort of order could have been passed by the Rent Controller on the said application? It has been held time and again that contract of tenancy is single and indivisible. There cannot be a piecemeal termination of the tenancy. There is no such provision in the Delhi Rent Control Act though such a provision exists in the Rent Control Acts which are in enforcement in other States. Thus in the above circumstances the Rent Controller was left with no option but to pass an eviction order in respect of the entire premises in occupation of the petitioner.

(29) The above view was given vent to in a catena of authorities. It was observed by their Lordships of the Supreme Court in Miss S.Sanyal v. Gian Chand, , ...." In the present case the First Appellate Court held that the house was "let out for running a school and for residence". The High Court held that where there is a composite letting, it is open to the Court to disintegrate the contract of tenancy, and if the landlord proves his case of bona fide requirement for his own occupation to pass a decree in ejectment limited to that part which "is being used" by the tenant for residential purposes. In so holding, in our judgment, the High Court erred. The jurisdiction of the Court may be exercised under Section 13(1)(e) of the Act only when the premises are let for residential purposes and not when the premises being let for composite purposes, are used in specific portions for purposes residential and non-residential. The contract of tenancy is a single and indivisible contract, and in the absence of any statutory provision to that effect it is not open to the Court to divide it into two contracts - one of letting for residential purposes, and the other for non-residential purposes, and to grant relief under Section 13(1)(e) of the Act limited to the portion of the demised property which "is being used" for residential purposes".

(30) It was observed by a Single Judge as reported in Shri Harbhajan Das v. Shri Tilak Raj Mehta, ,...." Similarly another lacuna in Delhi Act is that there is no jurisdiction in the Rent Controller to pass a decree in respect of the part of the tenanted premises. In the absence of such a provision the order of the Rent Controller may have to apply rigid formulae and thus though technically and legally it may be correct it may not be able to do full justice between the parties".

(31) It was next urged by Mr. Rohatgi that the petitioner is a spinster. She is all alone with no dependents and no other family member. The tenanted accommodation admittedly is a spacious house with so many rooms. Thus she does not need the entire accommodation bona fide. To my mind, the said argument is not available to the learned counsel for the petitioner. Admittedly, a tenant is the best judge of his requirement. The respondent is an old lady. She needs some member of the family to look after her. In any case it is none of the functions of the Court to assess the requirement of a landlord and to dictate his or her requirement.

(32) The above view finds support from the observations of the Hon'ble Supreme Court as reported in Smt. Prativa Devi v. T.V.Krishnan, . It was observed ....." The landlord is the best judge of his residential requirement. He has a complete freedom in the matter. It is no concern of the Courts to dictate to the landlord how, and in what manner, he should live or to prescribe for him a residential standard of their own".

(33) I am tempted here to cite a few lines from a Division Bench judgment of the Punjab High Court as reported in Kanwar Behari v. Smt. Vindhya Devi, , ..." There may yet be another approach to the problem. A landlord may require only three rooms in a premises let under a single tenancy and consisting of five or six rooms. Even in such a case, the landlord does require the premises and if he finds that there exist no provisions for adjustment of his rights with the tenant with respect to the remaining rooms which may be left with the tenant, he may say that he requires the entire premises, because it is only when that his bona fide requirement can be satisfied. It is impossible to hold that a landlord, who has no accommodation for his own residence, should be deprived of his right to get possession merely on the ground that the entire premises is too big for his requirements.....".

(34) The above view was also reiterated in S.Mohanlal v. R.Kondalah, ,...."Lastly it is urged by the learned counsel that the respondent does not require all the four rooms of the building for the purpose of carrying on his profession and it is sufficient if the respondent is given one of the rooms in the ground floor. But it is well established that the tenancy cannot be split up as held in Jaffer Ali v. Choitram, (1957) 1 Andh. Wr 348, where the learned Judge, Jaganmohan Reddy, J., as he then was, observed as follows:- "The Controller either determines the lease as a whole if he is satisfied that the landlord requires it for his occupation and has no other residential house of his own, or dismisses the application. He cannot be permitted to split up the tenancy, as was done by the Rent Control Appellate Authority in the instant case, viz. to direct the tenant to vacate 3/4 of the suit premises and allowing him to remain in possession of 1/4th, and create a new one between the landlord and the tenant, as that would have the effect of creating a tenancy for the parties."

(35) Learned counsel for the petitioner has then contended that the respondent earlier filed a petition for eviction under Section 14(1),(b) (d) & (e) of the Act in the year 1985. The said matter is still sub judice before a court of law. Hence the learned Rent Controller was not justified in passing the eviction order on the above said application under Order Xii Rule 6 CPC.

(36) The contention of the learned counsel is devoid of any force. To my mind, mere pendency of a petition under Section 14(1),(b) (d) & (e) of the Act would not come in the way of the Controller in passing an order of eviction under Section 14-C(1). Section 14-C is a separate provision of law which confers certain benefits on the retired employees of the Government in order to enable them to have their accommodation vacated on the ground that they need the same for the residential purposes. Thus, it has got absolutely nothing to do with other grounds of eviction.

(37) The above view was expressed by their Lordships of the Supreme Court as reported in Fibre Bond (Sales) v. Chand Rani and another, 1994 Supp (1) Scc 249,...." It is claimed that leave to defend having been granted in an earlier petition filed under Section 14(1)(e) the Rent Control Officer was not justified in rejecting the petitioner's application. We do not find any merit in the submission as the landlord under Section 14-D is a classified landlord with special rights. it was then urged that since an application under Section 14(1)(e) was pending the second application for the same purpose could not have been entertained. The submission is again devoid of any merit as the earlier application under Section 14(1)(e) was filed under unamended Act whereas the latter application was filed after a special right was conferred on the landlord."

(38) The above view was again reiterated by the Hon'ble Supreme Court in Anand Swaroop Vohra v. Bhim Sen Bahri and another, , ...." Moreover, the remedy under Section 14(1)(e) is available only to landlords in general and the landlords classified under Ss. 14-B to 14- D have been conferred with certain rights which are different from and independent of the rights under S. 14(1)(e). A defense under Section 14(1)(e) is not available to a tenant against applications made under Sections 14-B to 14-D."

(39) In the above stated circumstances I do not see any force in the present petition. Dismissed.