Subhash Chand Aggarwal vs Murli Manohar Lal & Ors.
2000 Latest Caselaw 248 Del

ORDER

Madan B. Lokur, J.

1. The controversy in this appeal filed under the provisions of Section 39 of the Delhi Rent Control Act, 1958 (hereinafter referred to as the Act) is rather restricted.

2. The facts which are not in dispute and as found by both the Courts below are that Rama Rani and her son had filed an eviction petition against Respondent No. 1 (since deceased) and his sub-tenant L.D. Bhargava (since deceased). Respondents No. 1(i) to 1(v) are the legal representatives of Respondent No. 1 and Respondents No. 2 to 5 are the legal representatives of L.D. Bhargava.

3. The eviction petition was filed claiming eviction of the Respondents under the provisions of Clauses (b), (d) and (e) of the proviso to Section 14(1) of the Act. The Courts below were of the view that no case of subletting under Clause (b) had been made out by the eviction petitioners nor did they make out any ground for eviction under Clause (e) of the proviso to Section 14(1) of the Act. Consequently, the only ground of eviction that survives for consideration is under Clause (d) of the proviso to Section 14(1) of the Act.

4. After the death of Rama Rani, her daughter Usha Mathur was substituted in her place. The eviction petitioners later sold the suit premises to one Subhash Chand Aggarwal who has been substituted as the sole Appellant.

5. Clause (d) of the proviso to Section 14(1) of the Act reads as follows:-

"14. Protection of tenant against eviction -

(1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court of Controller in favour of the landlord against a tenant:

     Provided  that the Controller may, on an application made to  him in  the  prescribed  manner, make an order for  the  recovery  of      possession  of  the  premises on one or  more  of  the  following      grounds only, namely:- 
 

     (a) to (c) xxx xxx xxx
 

(d) That the premises were let for use as a residence and neither the tenant nor any member of his family has been residing therein for a period of six months immediately before the date of the filing of the application for the recovery of possession thereof;

6. Learned counsel for the Appellant drew my attention to the eviction petition and more particularly the contents of paragraph 18(a)(ii) to the effect that neither the tenant nor any member of his family have been residing in the suit premises for a period of six months before the date of filing of the eviction petition. In reply, it was stated in the written statement that the premises had been legally sub-let so there was no question of Respondent No. 1 continuing to reside in the suit premises. It was further stated that the eviction petitioners were "receiving the rent with the said knowledge" and were stopped from taking any plea under Clause (d) of the proviso to Section 14(1) of the Act. In their replication, the eviction petitioners stated that Rama Rani was a resident of Bombay and the rent used to be collected on her behalf by one Kishan Chand and thereafter by one R.B.L. Mathur. It was denied that the eviction petitioners were estopped from taking a plea under Clause (d) of the proviso to Section 14(1) of the Act.

7. The learned Additional Rent Controller in his order dated 19th August, 1981 expressed the view that since Respondent No.2 was a lawful sub-tenant in the suit premises and also a tenant as defined under the Act, no ground for eviction under Clause (d) had been made out. The learned Rent Control Tribunal (hereinafter referred to as the Tribunal) in is order dated 6th May, 1983 did not approve of this finding of the learned Additional Rent Controller and was of the view that even if Respondent No. 2 was a lawful sub-tenant, he could be evicted if any other ground of eviction (other than sub-letting) was made out. The learned Tribunal came to the conclusion that the eviction petitioners had the knowledge about the factum of the subtenant's residence in the suit premises and since the sub-tenant was in the suit premises for a considerable length of time, the eviction petitioners had waived their rights to claim eviction on the ground of non-residence.

8. With regard to the question of sub-tenancy, as already mentioned above, the Courts below held that the eviction petitioners had not been able to make out any such case. What was held by both the Courts below was that the sub-tenant had come into possession of the suit premises sometime in June, 1945 which is well before the cut-off date of 9th June, 1952 as mentioned in Clause (b) of the proviso to Section 14(1) of the Act. It was also held by both the Courts below that the eviction petitioners were aware of and had knowledge of the sub-tenancy.

9. The contention of learned counsel for the Appellant was that even if the eviction petitioners had knowledge of the sub-tenancy and even if the premises had been lawfully sub-let, the tenant or the sub-tenant was nevertheless required to give a notice to the eviction petitioners in terms of Section 17 of the Act. In this context, the provisions of Section 16(1) and Section 17(2) of the Act are relevant. These provisions read as follows:

"16. Restrictions on sub-letting.

(1) Where at any time before the 9th day of June, 1952, a tenant has sub-let the whole or any part of the premises and the subtenant is, at the commencement of this Act, in occupation of such premises, then, notwithstanding that the consent of the landlord was not obtained for such sub-letting, the premises shall be eemed to have been lawfully sub-let.

(2) to (4) xxx xxx xxx

17. Notice of creation and termination of sub-tenancy.

(1) xxx xxx xxx

(2) Where, before the commencement of this Act, any premises have been lawfully sub-let either in whole or in part by the tenant, the tenant or the sub-tenant to whom the premises have been sub-let may, in the prescribed manner, give notice to the landlord of the creation of the sub-tenancy within six months of the commencement of this Act, and notify the termination of such sub-tenancy within one month of such termination.

(3) xxx xxx xxx"

10. According to learned counsel for the Appellant, and he is right in his submission, the requirement of the law as per Section 17(2) of the Act is that notice of creation of the sub-tenancy had to be given to the eviction petitioners. The learned Additional Rent Controller came to a finding of fact that the Respondents had failed to establish that any notice under Section 17 of the Act had been served on the eviction petitioners. This finding of fact was affirmed by the learned Tribunal. There is no reason or any material to upset this finding of fact especially since the Respondents have not challenged this finding.

11. It is now settled that once an order of eviction is passed against the tenant, it will be binding upon the sub-tenant unless the sub-tenant is able to establish that he has become adirect tenant of the landlord. This is possible only if the notice as postulated by Section 17 of the Act is served upon the landlord. The finding of fact in the present case is that no such notice was served on the eviction petitioners. Consequently, if an order of eviction is passed against Respondent No. 1 (the tenant), it will also have a direct impact on Respondent No.2 (the sub-tenant).(See for example, Raghubir Singh Vs. Savitri Devi & Ors., 1973 DLT 352).

12. The thrust of the submissions of learned counsel for the Appellant was that the Respondents had set up a plea of estoppel but what was in fact held by the learned Tribunal was that the eviction petitioners had waived their rights. Learned counsel submitted that there is a distinction between a plea of estoppel and a plea of waiver.

13. The Supreme Court has held in Mangal Sen Vs. Kanchhid Mal, of the Report that there has to be a specific plea of waiver in the written statement and that in the absence of any specific pleading, the trial Court is not called upon to go into the question of waiver.

14. Learned counsel relied upon Dawsons Bank. Ltd. Vs. Nippon Menkwa Kabushihi Kaish (Japan Cotton Trading Co. Ltd. to contend that estoppel is not a cause of action . It may "assist a plaintiff in enforcing a cause of action by preventing a defendant from denying the existence of some fact essential to establish the cause of action.... On the other hand, waiver is contractual and may constitute a cause of action: it is an agreement to release or not to assert a right........"(page 82 of the Report)

15. It is no doubt true that the concepts of waiver and estoppel are different and that waiver was not pleaded by the Respondents. But what was intended to be conveyed by the Respondents in their written Statement was that the eviction petitioners had knowledge of the sub-tenancy and that they had never objected to it. Consequently, they were estopped from now objecting to it. As mentioned above, both the Courts below have concurrently held that the eviction petitioners had knowledge of the sub-tenancy. The question that, therefore, arises is whether on these facts the eviction petitioners were estopped from claiming eviction of the Respondents on the ground of non-residence of the tenant for six months prior to the filing of the eviction petition.

16. The foundation of a plea of estoppel must be the representation of the existence of a fact. There is no suggestion given by the Respondents that the eviction petitioners had represented the existence of any fact. However, what the Respondents are suggesting here is that the conduct of the eviction petitioners has been such that they are estopped from claiming their right under the statute. I am of the view that it cannot be said that persons, such as the eviction petitioners, can be estopped from claiming a right which has been conferred by law. One may waive such a right but one cannot be estopped from claiming such a right. The obverse of what the Respondents are saying is that the sub-tenants have acquired a status of control over the suit premies through an argument of estoppel. Since the suit premises are governed by rent control legislation, I am of the view the sub-tenant cannot acquire such a status unless it is conferred upon him by the statute. As already pointed out hereinabove, the sub-tenants are not even entitled to claim such a status because no notice as required by Section 17 of the Act was sent to the eviction petitioners. Consequently, the sub-tenants are trying to achieve indirectly what they cannot achieve directly.

17. Under these circumstances, the fact that the eviction petitioners had knowledge of the sub-tenancy would not have much relevance to a plea of estoppel. It may have relevance to a plea of waiver but no such plea has been taken in the written statement failed by the Respondents.

18. Consequently, it must be held that the eviction petitioners were entitled to seek eviction of the tenant on the ground that the tenant was not residing in the suit premises for a period of six months prior to the institution of the eviction petition. It must follow, therefore, that the eviction petition should be allowed and the existence of theground specified in Clause (d) of the proviso to Section 14(1) of the Act must be held to be satisfied. Accordingly, the impugned orders insofar as they relate to Clause (d) of the proviso to Section 14(1) of the Act are set aside, and the eviction petition is allowed to this extent.

19. There will, however, be no order as to costs.

20. The record of the lower Court be sent back.