Pramod Chander And Ors. vs Ishwar Dayal
2003 Latest Caselaw 502 Del

JUDGMENT

A.K. Sikri, J.

1. This second appeal is preferred against the judgment dated 26th July, 1988 passed by the Rent Control Tribunal, Delhi. By one common judgment, three appeals were decided. We may have to notice the facts and events of the case leading to the filing of the present appeal, to appreciate the issue involved.

2. The appellants are the owners and landlord of house property bearing No. A-10, defense Colony, New Delhi. The property consisted of two bedrooms, two bathrooms, drawing-cum-dining room, kitchen with loft, lawn and courtyard at the back, one loft above the kitchen and bathroom. Monthly rent agreed to between the parties was Rs. 1,150/-. This property was let out to the respondent herein on 20th July, 1979. Within nine months of the letting, i.e. on 21st February, 1980 the appellants filed eviction petition under Section 14(1)(e) read with Section 25B of the Delhi Rent Control Act (hereinafter referred to as `the Act') seeking eviction of the respondent on the ground that the appellant No. 2 needed the premises for their own residence. Summons of this eviction petition were sent to the respondent through registered post. The Postman on the envelope made the remarks on 29th February, 1980 to the effect that the respondent had refused to accept the summons. Believing this report, the Additional Rent Controller proceeded with the matter ex-parte and passed ex-parte eviction order dated 15th July, 1980 and gave six months time to the respondent to vacate the premises. This six months period expired on 15th January, 1981. The appellants took out execution proceedings and obtained warrants of possession. Pursuant thereto, the possession of the premises was taken by the appellants with the assistance of the Bailiff on 20th January, 1981. It may be mentioned at this stage that when the court Bailiff went to the tenanted premises to take the possession and the respondent there from acquired the knowledge of the ex-parte decree, the respondent approached the Additional Rent Controller for staying of the execution which was not granted and matter was adjourned to 20th January, 1981 for report. Same day appeal was also preferred before the Rent Control Tribunal (for short `the Tribunal) and in appeal order of execution was stayed by the Tribunal on 20th January, 1981. However, in the meantime as noted above, part possession of the premises was taken by the appellants.

3. Thereafter, the respondent moved application under Section 25-B(4) & (9) of the Act read with Order IX Rule 13 of the Code of Civil Procedure (CPC) for setting aside the ex-parte order.

4. The respondent also filed suit for injunction, being Suit No. 91/81 on 30th January, 1981 seeking restraint against the appellants from forcibly evicting the respondent from the remaining part of the premises. In this suit, the appellant No. 2 gave an undertaking on 14th April, 1981 not to forcibly dispossess the respondent from the tenanted premises and to abide by the orders of the Additional Rent Controller. In view of this undertaking, the respondent withdrew the suit. The application of the respondent under Order IX Rule 13 CPC came up for hearing and by order dated 24th August, 1987 the court of Additional Rent Controller set aside ex-parte eviction order dated 15th July, 1980 and also passed order of restoration of tenanted premises. The Additional Rent Controller granted seven days' time to the appellants to deliver possession to the respondent i.e. by 31st August, 1987.

5. Certain significant developments took place between taking possession of the premises by the appellants on 20th January, 1981 and order dated 24th August, 1987 setting aside the ex-parte eviction order as well as thereafter. In view of these developments, the matter has been complicated and in fact the issue of relief revolves around the same and it would be noticed at the appropriate stage. What happened was that the appellants constructed first floor on the premises in question and are residing therein. Thus how the order of restoration is to be complied with is the question which is the bone of contention between the parties. According to the respondent, the entire premises were let out to him, including the terrace and therefore order of restoration would mean restoring the entire tenanted premises, described above, namely, the constructed premises on the ground floor along with terrace thereon. On the other case, case of the appellants is that terrace was not the part of the tenanted premises and therefore the appellants will have to restore the ground floor of the premises only and they have right to remain in possession of the first floor constructed after taking possession of the premises on 20th January, 1981.

6. Before we proceed to deal with this question, it would be apposite to complete the sequence of events. In the process, we would also be in a position to find out as to how the courts below have dealt with the issue formulated above.

7. After the Additional Rent Controller passed the order dated 24th August, 1987 setting aside the order of eviction and directing the appellants to deliver possession of the tenanted premises by 31st August, 1987, the appellants who were naturally aggrieved by the aforesaid order, preferred appeal thereagainst before the Tribunal on 1st September, 1987. This appeal was, however, dismissed on 7th September, 1987.

8. Since this appeal was preferred and as it was pending on 4th September, 1987, the Additional Rent Controller granted one week's time to the appellants to deliver the possession to the respondent. However, on coming to know of the construction made on the first floor, the respondent also moved application dated 10th September, 1987 seeking a prayer to demolish the said illegal construction on the terrace. At that time, there was one room on the terrace built by the appellants. However, in September, 1987 the appellants started making further constructions on the terrace which prompted the respondent to file another application dated 15th September, 1987 under Order XXXIX Rule 1 & 2 readwith Section 151 CPC before the Additional Rent Controller seeking restraint against the appellants from raising further constructions. This restraint order was passed on 17th September, 1987 by which time substantial additions had been made.

9. On 16th September, 1987 the appellants restored the possession of two rooms on the ground floor to the respondent. The respondent was not satisfied with the restoration of possession of this premises as according to him, the possession of roof which was subject matter of tenancy, should also have been restored.

10. The appellants, after giving possession of the ground floor to the respondent and inspite of dismissal of their appeal on 7th September, 1987 by the Tribunal against order dated 24th August, 1987 passed by the Additional Rent Controller setting aside ex-parte eviction order, was still not satisfied and moved another application on 1st October, 1987 contending that order dated 24th August, 1987 was a nullity, and therefore, should be set aside. Thus the appellants wanted to take back the possession of the premises restored to the respondent. On the other hand, the respondent was interested in taking possession of the entire premises and also wanted demolition of illegal structure.

11. In this war of wits between the parties, order dated 9th November, 1987 came to be passed by the Additional Rent Controller disposing of three applications. One application dated 1st October, 1987 was filed by the appellants and two applications were filed by the respondent for demolition of alleged illegal construction and restraining the appellants to make further constructions. By this order the Additional Rent Controller dismissed the appellants' application dated 1st October, 1987 and allowed the applications filed by the respondent for demolition of illegal construction and for injunction restraining further construction. In the process, the Additional Rent Controller held that the roof formed part of the tenanted premises and construction thereon was illegal. Direction was given either to demolish the construction within seven days or to hand over the same to the respondent as the entire house was under the tenancy of the respondent.

12. Against this order disposing of three applications, the appellants filed three appeals before the Tribunal, namely Nos. 977/87, 1091/87 and 1092/87. These appeals were disposed of by common order dated 26th July, 1988 by the Tribunal. The Tribunal, inter alia, held:

(a) The terrace/roof on which the new rooms had been constructed by the appellants was within the tenancy of the respondent and therefore the appellants could not deprive the respondent or take benefit of their own wrong by keeping possession of part of the tenanted premises when the appellants got in execution of an ex-parte decree and raising construction thereon.

(b) The Tribunal ordered restoration of two rooms and terrace to the respondent, upholding the direction given by the Additional Rent Controller in this behalf giving option to the appellants to either demolish the newly constructed portion or to deliver the same to the respondent.

(c) The Tribunal held that the appellants were bound to restore back the possession of the premises which they got in execution of the ex-parte decree after the said ex-parte decree was set aside.

Appeal No. 977/87 was accordingly dismissed in view of the aforesaid findings. In the second appeal bearing No. 1092/87 the Tribunal held that it was within the jurisdiction of the Additional Rent Controller to grant injunction under Order XXXIX Rule 1 & 2 CPC and thus set aside the order of the Additional Rent Controller in this behalf.

The third appeal bearing No. 1091/87 challenging the order dated 24th August, 1987 on the ground that said order was a nullity and without jurisdiction, was dismissed as not pressed by the appellants.

13. This SAO is filed against order dated 26th July, 1988 passed in appeal No. 977/87 whereby the appellants were directed to restore back the possession of the roof to the respondent. It may be mentioned that the respondent has also filed appeal being SAO No. 138/88 challenging the order of the Tribunal passed in appeal No. 1092/87 holding that the Additional Rent Controller could not have exercised power under Order XXXIX CPC. However, it is SAO No. 109/88 which is the subject matter of this judgment.

14. Before coming to the respective contentions advanced by learned counsel for the parties, it would be necessary to take note of some of the proceedings in this appeal. While admitting this appeal vide order dated 11th August, 1988, stay of operation of the impugned order passed by the Tribunal was granted which stay was made absolute till the disposal of the appeal vide order dated 28th October, 1988, after hearing both the parties.

15. After the ex-parte eviction order was set aside, leave to defend the application filed by the respondent was considered by the Additional Rent Controller and leave to defend was granted. Accordingly, the Additional Rent Controller proceeded with the eviction proceedings and recorded the evidence of the parties. When this appeal came up for hearing on 31st October, 2000 this development was informed to the court and it was pointed out that the case was fixed before the Additional Rent Controller on 7th November, 2000 for final hearing. Direction was accordingly given to the Additional Rent Controller to proceed to hear the final arguments on that date. The respondent herein moved CM No. 727/2000 for recalling of this order dated 31st October, 2000. This application was dismissed by this court vide order dated 6th November, 2000 with direction to the Additional Rent Controller to hear the eviction petition pending before him along with any miscellaneous applications. Thereafter, the respondent moved another CM No. 763/2000 pointing out that he had earlier filed CM No. 668/2000 for vacation of the stay granted by this court and CM No. 708/2000 for staying the proceedings of the trial court which were not heard and prayer was made that these applications be heard at an early date and in the meantime proceedings before the trial court be stayed. This application was disposed of vide order dated 4th January, 2001 directing that appeal itself be listed for final hearing on an early date. The matter was accordingly directed to be listed as item No. 1 subject to over-night part heard in the week commencing from 16th January, 2001. The matter came up for hearing on 24th January, 2001. Counsel for the respondent made his submissions. However, as the arguing counsel for the appellants was not present, a request for adjournment was made. In these circumstances, while adjourning the matter to 2nd February, 2001 this court passed an order staying further proceedings before the Additional Rent Controller. The appellants have filed Special Leave Petition against this order which is pending before the Supreme Court.

16. The facts narrated above would show that the possession of the ground floor has been restored to the respondent. His case is that terrace was also part of the tenancy and therefore the same also needs to be restored to him. Restoration be done either by demolition of the rooms constructed on the first floor or with those rooms. Though courts below have held that terrace was part of the tenanted premises, possession has not been handed over to the respondent as the appellants in the meantime filed this appeal wherein order of the Tribunal has been stayed.

17. Mr. Ravinder Sethi, learned senior counsel appearing for the appellants made four fold submissions in support of this appeal.

(i) Terrace was not the part of the tenancy and therefore there was no question of giving back the same to the respondent in restituion proceedings.

(ii) It was not within the power of the Tribunal to decide as to whether terrace was part of the tenanted premises or not and in any case such a question was decided without any evidence.

(iii) The appellants were required to restore the premises which they had obtained in the execution of ex-parte decree. The appellants did not obtain the possession of terrace and therefore there was no question of giving back the possession thereof to the respondent.

(iv) Even in equity, such an order for restitution of terrace should not be passed. When premises were let out, there was no construction on the terrace and therefore it could not be part of the tenancy. This construction is made by the appellants who are the landlord and owners of the property. They are now living in the aforesaid portion of the premises for the last 18 years. They have no other premises in Delhi or elsewhere. If the appellants are now directed to hand over the possession of the premises to the respondent, they shall be shelterless even when they are the owners of the house in question.

18. Mr. Sandeep Sethi, learned counsel appearing for the respondent, on the other hand, submitted that whether terrace was part of the tenanted premises or not, was a question of fact which had been decided by the two courts below in favor of the respondent and this court should not interfere with this finding in the second appeal. He further submitted that since the entire house was in possession of the respondent, even possession of the terrace was taken as a result of execution and therefore the respondent was entitled to restitution thereof. He also submitted that against the order of restitution appeal was filed which was not pressed and thus order became final as per which terrace was also restored. His further submission was that there was no question of any equity in second appeal and in any case the appellants could not claim equity who had obtained the eviction orders in the first instance by manipulating the service reports.

19. The aforesaid submissions of both the parties are noted in brief and would be elaborated while considering the same.

20. In so far as contention of the appellants to the effect that possession of the terrace was not obtained in execution of the ex-parte decree and therefore there was no question of giving back the said possession is concerned, the same needs to be rejected outright as this was the case pleaded by the appellants before the courts below. On the contrary, the appellants admitted that possession of the terrace came to them as a result of execution of the eviction order. The only argument advanced was that the terrace did not form part of the tenanted premises. It is this question which was addressed to by the Tribunal. This would be clear from the following portion of the impugned judgment:

"The appellants do so state that the possession of the terrace on which the new construction of rooms have been raised did not come to them as a result of the execution of the eviction order which has since been set aside. The learned counsel for the appellant during the course of argument also does not dispute that the possession of the terrace/roof came in possession of the appellants by execution of the eviction order. His argument, however, is that the terrace/roof did not form part of the tenancy premises of the respondent, and therefore, the appellants cannot be directed to demolish the construction or to deliver its possession to the respondent/tenant. His further argument is that the appellants have no other place to live and for this reason also the construction should not be allowed to be demolished or delivered to the respondent/tenant."

21. The aforesaid observations in the impugned judgment clearly delineate the nature of controversy raised by the appellants in the courts below. Therefore, the questions which require examination would be:

(I) Whether the terrace forms part of the tenanted premises?

(II) If so, whether the order directing the appellants to demolish the construction thereon or deliver its possession to the respondent is proper?

Re: Question No. I

22. The Tribunal on this question, held that it was clear from the copy of the lease deed in respect of the premises that the premises which were let out comprised of two bedrooms, two bathrooms, kitchen with front lawn and and back courtyard and one loft above the kitchen. There was no construction on the roof at that time of letting. The possession of the entire premises was given to the respondent which was singly storey house at the time of letting and roof was appurtenant to the main building. It therefore formed part of the tenanted premises more so when the parties did not expressly exclude the roof from the tenancy of the respondent. The contention of learned counsel for the appellants, in challenging the aforesaid finding was that in para 8 of the eviction petition the appellants had described the premises which was in the tenancy of the respondent and it did not mention the roof. It was also submitted that whether terrace formed part of the tenanted premises or not was a disputed question of fact and therefore in order to arrive at a particular finding it was but necessary for the Additional Rent Controller to arrive at any such finding after recording the evidence. In the absence of any evidence on record, it was not proper on the part of the courts below to return the finding that terrace was part of the tenanted premises.

23. Learned counsel for the respondent, on the other hand, supported the findings by highlighting that as it was a single storey house at the time of letting and the entire premises were let out and exclusive possession thereof was given to the respondent, it would include the terrace as well unless contrary intention was expressed in the lease agreement. His submission was that in order to exclude terrace from the tenanted premises, there had to be specific exclusion in the lease deed. In support of his submission, he relied upon the judgment of this Court in the case of Sushil Ahluwalia & Ors. Vs. Mr. Arvind Mehta & Anr reported in 2001 VII AD (DELHI) 46 and judgment of the Punjab and Haryana High Court in the case of Basant Ram Vs. Smt. Devi reported in 2000 (1) Rent Control Reporter 138. He also submitted that once the nature of property is taken into consideration, that would also support the respondent's contention that the terrace was part of the tenancy inasmuch as it was not only a single storey house but with staircase within the property. The manner in which the house was built, would clearly show that once the construction is made on the first floor, access to first floor had to be from within the portion of the premises in the ground floor. It was pointed out that after making construction on the first floor and giving possession of the ground floor to the respondent, the appellants were using the first floor by constructing a spiral staircase from outside the building.

24. There may be some force in the contention of the learned senior counsel for the appellants that without allowing the parties to lead evidence on this disputed question, the finding is given to the effect that terrace was part of the tenanted premises. However, from the admitted position on record, it appears, prima facie, that terrace would be part of the tenanted premises as it is not disputed that at the time of letting the built up property was single storey house and entire construction on the ground floor (i.e. Whatever construction was made on the land) formed part of the tenancy and exclusive possession of the premises was given to the respondent. I am not commenting upon the submission of the respondent in respect of staircase which are inside the premises on the ground floor leading to first floor, as that aspect has not come on record of this case. Going by the aforesaid admitted position about the nature of construction, namely, single storey house let out completely with exclusive possession given, one may come to a prima facie finding that terrace would be part of the tenanted premises. This fact, coupled with the admission of the appellants that the possession of roof along with other tenanted portion was taken by the appellants in the execution proceedings, was sufficient for the courts below to give such a direction. I may hasten to add that although the courts below have given categorical finding to the effect that terrace was part of the tenanted premises, it is clarified that it would be treated as prima facie finding only. As the Additional Rent Controller has recorded evidence on this aspect, it would be open to the Additional Rent Controller to come to a definite finding on this aspect on the basis of evidence available before him without being influenced by this prima facie finding.

25. However as far as this case is concerned, once possession was taken, including that of terrace, by the appellants on the basis of an ex-parte decree which was ultimately set aside and the courts below were to decide the question of restitution, this prima facie finding was sufficient for the said purpose.

Re: Question No. II

26. Sub-section (1) of Section 144 of CPC dealing with restitution is in the following terms:

" 144 (1) Where and in so far as a decree (or an order) is varied or reversed in any appeal, revision or other proceeding or is set aside or modified in a a by suit instituted for the purpose, the Court which passed the decree or order] shall, on the application of any party entitled in any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree ([or order] or [such part thereof as has been varied, reversed, set aside or modified]; and, for this purpose, the Court may make any orders, including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are properly [consequential] on such variation, reversal, setting aside or modified of the decree or decree.]"

27. Law on this aspect is almost settled by catena of judgments of the Supreme Court as well as various High Courts. The Tribunal has itself referred to the following judgments while holding that the entire premises which were obtained in execution of ex-parte decree, has to be restored after setting aside of the said decree. (1) Binayak Swain Vs. Ramesh Chandra Panigrahi , (2) Sham Lal Vs. Jaswant Kaur reported in 1980 RLR 362, (3) Khairati Ram Nayyar Vs. K.S. Advani B reported in (1972) DLT 522, (4) Jaswant Kaur Vs. Tikan reported in 1986 (2) RCJ 214, (5) Jugal Kishore Vs. Maharaja Bahadur reported in 1977 RLR (Note) and (6) Bushing Schmit P. Ltd. Vs. P.T. Manghani reported in 1977 RLR (SC) 283.

28. It may be noted that the Punjab & Haryana High Court in the case of Basant Ram (supra) took note of many other judgments while holding that even the purchaser of the premises who had purchased the property after landlord got possession thereof in pursuance of ex-parte order, will have to restore the possession when such ex-parte order is set aside in appeal. That was also a case where the purchaser after purchasing the property had made some improvement in the premises as well. The judgments noted in this behalf by the Punjab & Haryana High Court were:

1. Gurjoginder Singh Vs. Jaswant Kaur reported in 1994 (1) Rent Control Reporter 517, (2) Padanathil Rugmini amma Vs. P.K. Abdulla reported in 1996 (1) Rent Law Reporter 241.

29. After elaborately discussing the matter on merit, the question which remains to be considered is the nature of order which should be passed in a case like this. When it is found that the possession of the premises is taken in execution of ex-parte decree and that decree is ultimately set aside, ordinarily possession has to be restored back to the tenant. However, there are certain peculiar facts in this cse and various significant developments have taken place which have already been noted above. Recapitulating the same in brief, it may be reiterated that possession of the premises was taken by the appellants sometime in the year 1981. At that time it was a single storey house. After setting aside the ex-parte decree, the possession of the ground floor has been restored to the respondent. The respondent, is at the most, deprived of the terrace. On this terrace the appellants have made constructions and are residing therein for more than 15 years. The averment of the appellants to the extent that there is no place for the appellants to live in Delhi has not been denied by the respondent. The eviction proceedings filed by the appellants are under Section 14(1)(e) of the Act, i.e. on the ground that the appellants need the premises in question for their personal bona fide use. They are the owners of the house. The proceedings are pending for almost 20 years. 16 years have passed after the ex-parte decree was set aside. Of course, so much time has taken because of multifarious litigation which was the off-shoot of the ex-parte decree and setting aside thereof. What is emphasised is that the proceedings have entered the final stage and only arguments are to be heard (in fact even part arguments were heard at one point of time) and judgment can be delivered soon thereafter. Keeping in view all these considerations coupled with the fact that final adjudication on the question as to whether terrace is part of the tenancy or not is pending, end of justice would be met in case the possession of the terrace and/or construction on the first floor is not given to the respondent at this juncture. Instead it would be more appropriate if the Additional Rent Controller decides the eviction petition expeditiously and the outcome thereof governs the further course of action. In case the appellants succeed in the said petition and obtain the eviction orders, there would not be any need to give possession of the first floor which was admittedly not a part of the tenancy as constructed afterwards. However, in case the eviction petition filed by the appellants fails ultimately, the appellants will have to comply with the directions contained in the orders of the Additional Rent Controller and upheld by the Tribunal. It may be added that this course of action is deemed proper to meet the ends of justice after taking into consideration all the aforesaid aspects cumulatively and not in isolation.

30. Thus while confirming the judgments of the courts below, the directions are modified to the extent that the possession of terrace, in the manner directed by the courts below, would not be handed over to the respondent till the decision of the eviction petition by the Additional Rent Controller. The Additional Rent Controller shall however decide the said petition within a period of three months from the first date fixed before him. In case the eviction petition fails and is dismissed, the possession of the terrace, in the manner directed by the courts below, would be handed over to the respondent within two months of the said decision.

31. The appeal stands disposed of with no order as to costs.

32. The parties shall appear before the Additional Rent Controller on 15th May, 2003.