Krishna Vanti vs Modi Overseas And Ors.
2002 Latest Caselaw 2002 Del

JUDGMENT

S. Mukherjee, J.

IA NO. 177/02

1. This application has been filed under Order 7 Rule 11 by the defendants, primarily on the ground that there is a bar in law to the entertaining of the present suit, in terms of Section 50 of the Delhi Rent Control Act which reads as under:

"50. Jurisdiction of civil courts barred in respect of certain matters -

(1) Save as otherwise expressly provided in this Act, no civil Court shall entertain any suit or proceeding in so far as it relates to the fixation of standard rent in relation to any premises to which this Act applies or to eviction of any tenant there from or to any other matter which the Controller is empowered by or under this Act to decide, and no injunction in respect of any action taken or to be taken by the Controller under this Act shall be granted by any civil court or other authority.

(2) If, immediately before the commencement of this Act, there is any suit or proceeding pending in any civil court for the eviction of any tenant from any premises to which this Act applies and the construction of which has been completed after the 1st day of June, 1951, but before the 9th day of June, 1955, such suit or proceeding shall, on such commencement, abate.

(3) If, in pursuance of any decree or order made by a court, any tenant has been evicted after the 16th day of August, 1958, from any premises to which this Act applies and the construction of which has been completed after the 1st day of June, 1951, but before the 9th day of June, 1955, then, notwithstanding anything contained in any other law, the Controller may, on an application made to him in this behalf by such evicted tenant within six months from the date of eviction, direct the landlord to put the tenant in possession of the premises or to pay him such compensation as the Controller thinks fit.

(4) Nothing in Sub-section (1) shall be construed as preventing a civil court from entertaining any suit or proceeding for the decision of any question of title to any premises to which this Act applies or any question as to the person or persons who are entitled to receive the rent of such premises."

2. The contentions of the defendant/applicant in brief, is that two eviction petitions have been filed by the plaintiff under the ground for eviction contemplated by Section 14 of the Delhi Rent control Act, which reads as under:

"14(1)(j) that the tenant has, whether before or after the commencement of this Act, caused or permitted to be caused substantial damage to the premises."

3. These eviction petitions are stated to have been filed on the allegation of "substantial damage" to the premises, and since the rent of the suit premises is less than Rs. 3,500/- per month, it is submitted by the defendant that therefore to these premises only the said special enactment (viz DRC Act) will apply, and plaintiff is liable to be held to be confined to her remedies under the said Act only; and that as such she cannot take recourse to filing a civil suit involving a prayer for restoration of the premises back to the original condition, more particularly in view of Section 50 of the DRC Act which ousts the jurisdiction of the civil Court.

4. The submission of learned counsel for the plaintiff, on the other hand, is that there are prayers for permanent mandatory injunction also. Apart from that, according to learned counsel for plaintiff, the Rent Controller, under the DRC Act, has the option of either ordering the restoration of the damage or of granting compensation to the landlord. The plaintiff in the present case, being desirous of only securing back the restoration of the premises, therefore he would be entitled to pursue with the civil suit, notwithstanding the eviction petitions filed by her subsequent to the institution of this suit.

5. The following relief have been claimed in the prayer clause of the suit:

"(A) permanent injunction restraining the said defendant(s), its Directors, employees, officers, agents, security guards, contractors and/or workmen from carrying out any illegal and/or unauthorised construction in an around the demised premises forming part of the building No. G-11, Maharani Bagh, New Delhi-110 065;

(B) permanent injunction restraining the said defendant(s), its Directors, employees, officers, agents, security guards, contractors and workmen from carrying out any damage much less substantial damage, alterations, addition and/or renovations to the present original super structure of the demised portions of the said premises bearing No. G-11, Maharani Bagh, New Delhi-110 065 including the floorings and tilings thereof;

(C) mandatory injunction requiring the said defendant (s), its Directors, employees, officers, agents, security guards, contractors and workmen to restore the demised premises forming part of the building G-11, Maharani Bagh, New Delhi to their original condition;

(D) permanent injunction restraining the said defendant (s), its Directors, employees, officials, agents, security guards, contractors and workmen from providing unhindered and uninterrupted right to the plaintiff, her family members, authorised representatives and/or workmen to inspect the demised premises at all reasonable hours, particularly after prior intimation;

(E) permanent injunction against the said defendant (s), its security guards, contractors and workmen from obstructing, interfering and/or hindering the plaintiff's right of free ingress and egress into the premises forming part of the building bearing No. G-11, Maharani Bagh, New Delhi-110 065 that are in the actual, physical possession, use and occupation of the plaintiff, i.e. one garage on the left hand side and two servant quarters on the first floor of the annexe building;

(F) permanent injunction against the said defendant (s), its Directors, employees, officers, agents, security guards, contractors and workmen from subletting, assigning or otherwise parting with the possession or even from creating any third party interest in any form whatsoever in respect of the demised portions of the premises interference in this suit;

(G) permanent injunction, against the said defendant (s), its Directors, employees, officers, agents, security guards, contractors and workmen from changing or converting the user of the demised portions of the premises in reference in this suit from residential to commercial/industrial;

(H) for such other or further reliefs including costs of this suit as this Hon'ble Court may deem fit and or proper.

6. It would be appropriate to deal with the above prayers item-wise.

7. As regards Prayers (A) and (B) by way of permanent injunction for restraining the defendant from carrying out any illegal or unauthorised construction, it is submitted by the learned counsel for the defendant itself that defendant is prepared, without admitting any of the contentions of the plaintiff, the statement may be recorded on defendants behalf that no construction work, or addition, or alteration, or renovation of any kind whatsoever will be carried out in respect of the premises in question.

8. As such, prayers 'A' and 'B' accordingly would no longer survive for consideration in view of the said statement made on behalf of the defendant. Prayer 'C' will be deal with in detail hereinbelow after prayer G.

9. As far as prayer D is concerned, learned counsel for the defendant submits, that subject to being given notice and reasonable time for compliance, the defendant has no objection to the inspection of the demised premises by the plaintiff, or by the authorised representative of the plaintiff. The said prayer also therefore does not survive for consideration.

10. As regards prayer E, learned counsel for the defendant has assured that in relation to one garage which is in possession of the plaintiff, with entry from the back side, the ingress and egress of plaintiff, as also the use and occupation thereof by the plaintiff, shall not be obstructed.

11. In response to prayer 'F' and 'G', learned counsel for the defendant has submitted that they undertake not to carry out any of the activities referred to in the said prayers E & G, and therefore these prayers also do not survive for consideration.

12. That leaves only prayer 'C'. As regards Prayer C regarding plaintiff's claim for restoration of the premises to their original condition, in this regard, while it is no doubt true that in the case of some other sub-clauses of Section 14(1) of the Delhi Rent Control Act, such as subletting, since injunctive relief cannot be granted by the Rent Controller, as such a Civil Suit for injunction may be maintainable at earliest stage viz before subletting takes place, but once the premises have been subjected to damage, as is the allegation in the present case, then the only remedy open to the land lord of such premises, which are admittedly subject to the DRC, Act viz having rental below Rs. 3500/- per month, would be to approach the Rent Controller under Section 14(1) of the Act, and not by way of a civil suit.

13. Not only would Section 50 stand in the way, as a bar to the suit, but even otherwise it is only appropriate that in relation to such premises which are covered by the statutory provisions of the DRC Act, which Act is duly containing both the right and remedy in this behalf, then it would be incumbent upon the plaintiff to take resort to that remedy only. As a corollary it would follow that it is not available to the landlord to take recourse to the remedy of filing a civil suit.

14. Learned counsel for the plaintiff has relied upon the judgment of Single Judge of this Court delivered in Suit No. 2482/94, titled S.K. Mehta v. Consilium (P) Ltd. wherein it was held, while dealing with an application under Section 10 CPC, that in view of the optional nature of the alternative directions possible under the Rent Act, the proceedings of the civil suit will not be stated. That context was wholly different. Even otherwise, once the parliament has legislated on the matter, and has laid down that Rent Controller may direct either restoration of the premises, or may award damages, as the case may be, then that would certainly over-ride the private rights of the landlord in this case in the context of her contention that she would not be content with an award of damages even if statutorily so provided and therefore she must be permitted to pursue her civil suit for relief of restoration back of the premises to their original condition. In the view I am taking, I felt to need to go into the other crucial aspect that injunction is in any case, only a discretionary remedy.

15. Under Section 9 of the Code of Civil Procedure all suits are maintainable except for those which are barred. It is the admitted position that the suit premises in the present case, having a rental below Rs. 3500/- per month, fall within the scope of the Delhi Rent control Act. The only question which needs consideration is whether a regular civil suit will be maintainable in relation to a cause of action which is also covered by Section 50 of the Delhi Rent Control Act. My attention has been drawn to the Division Bench of this Court in RFA (OS) 11/94 titled Fhiroz Adi Vandrevala v. Major Shanti Kumar Sharma reported at 1995(1) RLR page 720. It has been laid down in the said case that in view of the express provision of Section 50 of the Delhi Rent Control Act, the civil courts would not have jurisdiction in regard to matters which fall within the purview of the Rent Controller. It is not denied, and it cannot be denied, that orders regarding restoration of the premises of their original condition can be obtained by recourse to Section 14 of the said Act. It would follow therefore that the civil court has no jurisdiction to entertain such a suit which would then stand barred by law in terms of section 50 of the Act also.

16. In the said Division Bench judgment, the appeal was allowed and the order of the Hon'ble Single Judge was set aside only on the ground that the relief regarding permanent injunction in protecting the peaceful possession of the plaintiff, does not fall within the purview of the Delhi Rent Control Act.

17. That is not the case in the present suit. Here is a case which would fall squarely within the four corners of Section 14(1)(j) of the Act. In fact, the plaintiff in her submissions has virtually accepted this position, because the plaintiff has primarily made a grievance to the fact that the Rent Controller while exercising power under Section 14(1) of the Act, has the discretion to either direct restoration of the premises to the original condition or to award damages. The emphasis of the plaintiff seems to be that the second alternative relief regarding damages, being not acceptable to the plaintiff, and hence the suit should be held to be maintainable for plaintiff's satisfaction regarding the first alternative of above relief, which plaintiff wants to secure.

18. There is a fundamental fallacy in this argument. Once Parliament has enacted a law providing for these two eventualities in the case of a tenant to whom the Rent Act applies, then where the tenant has committed breach of the obligation towards the landlord by carrying out unauthorised addition/alteration, then the legal right of the plaintiff shall stand governed and limited by the law enacted by the Parliament for the said purpose, and it would not be open to an individual to claim that just because the other of the two alternatives of legal redressal viz either restoration or damages, is not acceptable to her, therefore in her individual case there should be an authorisation to by-pass the statutory provisions, by allowing the plaintiff in this case to maintain a civil suit, even where as in the present case, the plaintiff has elected to voluntarily take proceedings under the DRC Act which are now presently pending before the Court of Rent Controller.

19. Even if there was some doubt regarding the legal position so-long-as plaintiff had stuck to her guns regarding maintainability of the civil suit as being the only proper and efficacious remedy, however, no soon as the plaintiff of her own free will, and violative, has instituted two eviction petitions against the defendant, including on the ground of substantial damage to the premises and the prayer for the restoration back of the same, there can be no manner of the doubt that the civil suit would not be maintainable in relation to prayer 'C' of the plaint, which as submitted above, is the only surviving prayer requiring consideration by this Court pursuant to the assurances/concession in relation to other prayers made by the learned counsel for the defendant during the arguments held in this matter.

20. There is another well-settled principle regarding maintainability of the civil suit, viz that if the right and remedy are both contained in a special statute, then the general remedy of filing of a regular civil suit, will not be available. In this connection reference may be made to the judgment of the Apex Court in the case of Premier Automobiles Ltd. v. Kamlekar Shantaram Wadke of Bombay and Ors., to the effect that where a right is created by statute and the method of enforcing the right or of redressing the grievance, is contained in the statute creating the right, then the general remedy of suit will be impliedly barred.

21. In view of the above, and taking into account the assurances/concession of the defendant which have been duly noted hereinabove in this judgment, the only relief in the suit which survives for consideration viz prayer

(c), stands clearly barred in view of the provisions of Section 50 of the Delhi Rent Control Act.

22. Accordingly the plaint is rejected in relation to the sole surviving prayer (c) as set out in the plaint. As regards all other prayers, the defendant is held bound by the assurances as recorded in para 7 of the judgment. Once the defendant is held bound by the terms of the assurances held out to this Court, no relief beyond the same is warranted in favor of the plaintiff in relation to the other prayers (A)(B)(D)(E)(F)(G) and (H).

23. With the above observations, the plaint is rejected and the suit disposed of in the above terms, but with no order as to costs.