Rajeshuri (Deceased) Through ... vs Union Of India (Uoi)
2000 Latest Caselaw 1104 Del

JUDGMENT

Madan B. Lokur, J.

1. By an order dated 23rd August, 1978 a learned Judge of this Court framed the following question of law for decision in this second appeal:-

"Whether on the facts found the courts below ought to have inferred that the respondent had waived its right to re-enter?

The facts in this appeal are quite a handful. But it is not essential to detail each and every fact, as will be subsequently evident.

R.S.A. No. 111/78

The Appellant and her predecessors and successors in interest (hereinafter referred to as the Appellant) were and are the lessees of plot No.21, Block No.90, Connaught Place, New Delhi measuring 3652 square feet. This plot was given on a perpetual lease by the Governor General in Council. The "principal Lesser" is now known as the Land & Development Officer (for short the L&DO) and is the Respondent herein. As per the lease deed, the ground floor on the plot was to be used as a shop while the first and second floor were to be used as residential premises.

The first and second floor of the leased property (hereinafter referred to as the suit premises) were let out to K.S. Rao for running a boarding and lodging house.

The successors-in-interest of K.S.Rao are not parties to the dispute between the Appellant and the Respondent L&DO. However, they are (quite obviously) affected by the result of the dispute. Accordingly, they moved C.M.No.1524 of 1987 for being imp leaded in this second appeal. The application was directed to be taken up for disposal along with the appeal. For the sake of convenience, the successors-in-interest of K.S.Rao are hereinafter referred to as "the Tenants".

2. Frankly, it is not necessary to go into the technicalities of deciding whether the Tenants are entitled to be imp leaded as parties in this second appeal. The reason is that the Tenants are undoubtedly (and admittedly) affected by the outcome of this appeal. Moreover, it was agreed by learned counsel for the parties that the Tenants may be heard, without prejudice to the rights and contentions of the Appellant. Even otherwise, this appeal was directed to be heard with SAO No.407 of 1978 filed by the Tenants. In any case, therefore, the Tenants would have to be heard because of certain overlapping events. For all these reasons, learned counsel for the Tenants was heard.

3. In view of the above, CM No. 1524/87 stands disposed of.

4. Some time in 1973, the Appellant filed a civil suit in the Court of the learned Senior Sub-Judge, Delhi praying for the following reliefs:-

"It is, therefore, prayed that decree for permanent injunction be passed restraining the defendant from exercising the alleged right of re-entry and from interfering with plaintiff's peaceful possession and occupation of the above said property or in the alternate for mandatory injunction directing the defendant to accept the plaintiff right to hold the property on perpetual lease on payment of charges claimed by L&D Office vide letter dated 10.1.72. Such other relief be also granted as may be just and expedient in the circumstances of the case. Costs of the suit be also awarded."

5. The core issue raised by the Appellant was that she and the L&DO had agreed (and a concluded contract had come into existence) to the effect that the user of the suit premises be converted from residential to commercial and, therefore, the Appellant was entitled to a mandatory injunction in this regard. The subsidiary issue was the right of the L&DO to re-renter the suit premises for a breach of the terms of the lease deed.

6. By his judgment and order dated 27th January, 1977, the learned sub-Judge held that there was no concluded contract between the Appellant and the L&DO to convert the suit premises from a residential user to a commercial user. It was also held that the notice given by the L&DO to re-enter the suit premises was valid in law.

7. In appeal, the learned Additional District Judge upheld the conclusions of the learned sub-Judge. It was held that the change of user of the suit premises from residential to commercial was still at the stage of negotiations. No concluded contract had been entered into between the Appellant and the L&DO to convert the user of the suit premises.

8.Learned counsel made their submissions in both appeals on 3rd, 13th, 17th, 18th, 19th and 26th July, 2000 when judgment was reserved. Not surprisingly, no one appeared on behalf of the Respondent L&DO.

9. On 19th July, 2000 learned counsel for the Landlady stated that his client is not insisting on a permanent change of user of the suit premises from residential to commecial.

10. In other words, the Landlady gave up her prayer for a mandatory injunction to the effect that the L&DO had agreed to convert (and the Landlady had accepted the conversion of) the suit premises from residential to commercial. In view of this statement of learned counsel for the Landlady, the question for decision in RSA No.111 of 1978 does not arise and is, therefore, not required to be answered.

11. Quite naturally, this turn of events greatly agitated learned counsel for the Tenants. He spent all of 19th and 26th July, 2000 vilifying the conduct of the Landlady in giving up the principal prayer which was agitated by her in both the Courts below in her civil suit. He argued that the Landlady cannot be allowed to give up her prayer for a permanent conversion of the suit premises for commercial purposes, as this would have serious repercussions so far as the Tenants were concerned. According to learned counsel, this would mean (subject to the decision in the connected appeal) that the Tenants were misusing the suit premises and were, therefore, liable to pay misuse charges or face eviction.

12. Consequently, learned counsel for the Tenants took it upon himself to contend that the L&DO had offered to permanently convert the user of the suit premises from residential to commercial and this was accepted by the Landlady and he made his submissions in this regard.

13. Unfortunately, however, I am of the view that if a litigant does not wish to press a relief prayed for, he cannot be compelled to do so. The choice is entirely of the litigant to decide what prayer to seek. If a litigant gives up a prayer, his wishes have to be respected. In this case, the Landlady does not press her prayer for a permanent conversion of the suit premises from residential user to commercial user. So be it.

14. In view of these developments and after hearing the submissions of learned counsel, it appears to me that a further question arises, namely, "Even otherwise, is the L&DO entitled to re-enter the suit premises?"

15. This question arises out of one of the reliefs prayed for by the Landlady in the civil suit, namely, for an injunction restraining the L&DO from re-entering the suit premises.

16. In view of the issues raised and the submissions made on behalf of the Landlady in the Courts below, it is clear that the additional question has to be answered on the basis of the undisputed facts. Indeed, this must also be the natural consequence of the statement of learned counsel for the Landlady that she does not want a decision on the question framed by this Court on 23rd August, 1978.

17. Consequently, the additional question has to be treated as a question of law to be decided on the undisputed facts of the case.

18. It is not disputed that the suit premises are being used for running a boarding and lodging house. It has been held by the Supreme Court (and by me following the decisions of the Supreme Court) that running a boarding and lodging house amounts to commercial user of the premises. Therefore, I am proceeding on the basis that the suit premises are being used for commercial purposes which is not permitted by the lease deed entered into between the L&DO and the Landlady.

19.The decisions of the Supreme Court in this regard are:-

***

Consequently, what has to be considered under these circumstances, is whether the L&DO is entitled to re-enter the suit premises on the ground that the suit premises were being misused contrary to the lease deed.

This question is no longer res integra in view of several decisions of this Court, including Amrit Lal Bussi (since died) v. Union of India & Ors., , Dewan Daulat Rai Kapoor v. Union of India & Anr., , S. Aggarwal v. Union of India & Ors., and Karamatullah v. Delhi Development Authority, 1993 RLR 268.

20. In Amrit Lal Bussi it was held in paragraph 8 of the Report as follows:

"If the premises are in possession of the lessee himself, then of course it is in his hands to stop the misuse and in such a case the reasonable time may be as specified in the notice. Since in the present case the premises were not in possession of the petitioner and immediate steps were taken by the petitioner against the tenant Federation as permissible under law to stop the misuse and in fact the misuse was remedied in 1976, in my opinion, the misuse was remedied within reasonable time and the order of re-entry cannot be sustained".

21. Similarly, in Dewan Daulat Rai Kapoor it was held in paragraph 4 of the Report that "in the present case, I find that the petitioner had taken steps to stop the misuse by the tenants even before notice was issued by the respondent dated 15th March, 1983 and in fact, an eviction petition was filed which is still pending in the Court of the Additional Rent Controller. Since the petitioner is not in a position to stop the misuse committed by the tenant, the petitioner must get time to remedy the breach till eviction petition is decided".

22. In S. Aggarwal, a learned Single Judge of this Court followed the decision rendered in the case of Amrit Lal Bussi.

23. Finally, in Karamatullah note was taken of the submission of learned counsel for the Plaintiffs that his clients had taken "necessary steps to stop the misuse by the tenants and two eviction petitions and one suit are pending in the respective subordinate Courts against the defaulting tenants". After considering the decision rendered in Dewan Daulat Rai Kapoor it was held in paragraph 15 of the Report that learned counsel for the Plaintiffs was correct in contending that the Defendants "cannot take action of re-entry in respect of the suit premises in the circumstances of the present case, where necessary action is already taken by the plaintiffs".

24. The consistent view of this Court has, therefore, been that the L&DO can re-enter the leased premises but the re-entry cannot be given effect to if the lessee takes suitable action against his tenant to stop the misuse of the leased premises. I see no reason to take a different view.

25. In RSA No.111 of 1978, there is no dispute about the fact that the Appellant had filed a petition for eviction of the Tenants under the provision of Clause (k) of the proviso to Section 14 (1) of the Act. In fact, the connected appeal being SAO No.407 of 1978 arises out of this eviction petition.

26. Under the circumstances, it has to be held that the L&DO could re-enter the suit premises but the re-entry cannot be given effect to till the termination of the proceedings initiated by the Landlady against the Tenants under the provisions of the Act.

27. Consequently, the Landlady is entitled to an injunction restraining the L&DO from re-entering the suit premises and interfering with her possession and occupation of the suit premises till the eviction proceedings instituted by her against the Tenants are finally concluded.

28. The appeal has, therefore, to be allowed only to this limited extent.