Mrs. Bhawna Manchandani vs Mr. Swaran Dhawan
2005 Latest Caselaw 584 Del

JUDGMENT

O.P. Dwivedi, J.

1. This appeal under section 39 of the Delhi Rent Control Act, 1958 for short ( the 'Act') is directed against order dated 19.10.2000 passed by Additional Rent Control Tribunal whereby an eviction order under section 14(1)(b) of the Act was passed, reversing the order dated 25.5.99 of the Additional Rent Controller, Delhi dismissing the petition.

2. Briefly narrated, facts leading to the appeal are that the landlady respondent herein filed an eviction petition under section 14(1)(b) of the Act on 20.7.87. It was alleged in the eviction petition that the premises in question i.e Flat No. 103, Vaikunth, 82-83, Nehru Place, New Delhi was let out to appellant herein vide agreement dated 18.3.81. The appellant started the business in the name and style of Neelam Computer Data Services as sole proprietor. It was alleged that the appellant had sublet , assigned and /or parted with possession to one Mrs. Renu Manchandani, proprietor Neelam Computer Consultancy as its sole proprietor. Landlady came to know about the alleged subletting in June 1987 when Mohan Manchandani, husband of the appellant brought two cheques, one for Rs. 577/- and other for Rs. 196.50/- signed by Ms. Renu aforesaid. In the written statement appellant denied the alleged subletting to Renu Manchandani. Her case was that premises in question was in continuous possession of herself and her husband and they were joint tenants, in exclusive control and possession of the premises but the name of her husband did not figure in the rent agreement because he was in government service at that time so he could not have carried on any business in his name. Mr. Mohan Manchandani took voluntary retirement from the service in July 1987 and thereafter devoted himself fully to the business being run as partner with her and in this regard regular partnership deed was executed in July 1987. It was further pleaded that the computer business being run in the suit premises in the name and style of Neelam Computer Data Services was primarily the venture of her husband as she herself had no know how of the computer business. In para (I) and of the (J) of additional pleas in the written statement, the appellant had pleaded that all the employees who kept on working and are still working in premises in suit, were employed by Mohan Manchandani and the entire control and possession of the business as also that of the premises had throughout been of Mohan Manchandani besides herself. It may be pointed out here that this written statement was fled on 22.11.88, On that very day appellant and her husband filed a joint petition for divorce (first motion) along with their affidavits setting out temperamental incompatibility as the ground. Third document i.e power of attorney dated 22.11.88 was also executed by the appellant in favor of her husband. Ultimately a decree for divorce on the basis of mutual consent was passed by the learned Additional District Judge in June 1989. The timing of the filing of the written statement coincide with the filing of first motion of divorce by mutual consent. This obviously means that by that time the parties had settled terms of separation. Appellant Bhawna Manchandani appeared in the Court on 17.9.92 and on being asked by the Court, she stated that power of attorney which she executed in favor of her husband is still valid.

3. During the pendency of the petition, the respondent/ landlady filed an application under O. 6 Rule 17 CPC dated 11.9.95 seeking permission to introduce some subsequent events which came to her notice. By the proposed amendments, the landlady wanted to plead that the appellant tenant had already divorced her husband Mohan Manchandani vide decree dated 3.6.89 and thereafter appellant has shifted to Dubai. Respondent landlady wanted to plead that as part of divorce settlement, the appellant had left the suit premises under the control of her ex-husband to carry on his business in the premises and thereafter the appellant herein has no concern whatsoever with the suit premises or the business being run therein and this according to the landlady, amounted to subletting, assignment or parting with possession in favor of Mohan Manchandani. However, learned ARC rejected this application vide order dated 28.11.95 being of the view that this would amount to introducing a new cause of action. After considering material on record, learned ARC came to the conclusion that the landlady has failed to prove subletting, assignment or parting with possession in faouvr of Renu Manchandani. Accordingly, he dismissed the eviction petition vide order dated 25.9.99. Learned ARC repelled the appellant's plea of her ex-husband Mohan Manchandani being a joint tenant in the suit premises.

4. Landlady preferred an appeal before learned Tribunal under section 38 of the Act. The appellant herein also filed cross objections challenging the findings of learned ARC whereby he rejected the plea of joint tenancy. Learned Tribunal rejected the cross objections filed by the appellant but upheld the landlady's plea that there is subletting, assignment or parting with possession in favor of her ex husband Mohan Manchandani. Learned Tribunal felt convinced that after her divorce with Mohan Manchandani she has no concern whatsoever with the premises or business being run therein and the alleged power of attorney or partnership agreement are only cover up for the assignment so that Mohan Manchandani could continue his business in the suit premises. This, according to the learned Tribunal was apparently a part of settlement for agreeing to joint petition for divorce which incidently was filed on 22.11.88 on which date written statement was filed and power of attorney was executed by the appellant in favor of her ex husband. It may be pointed out here that in the grounds of appeal filed before the Tribunal, the respondent landlady had challenged the rejection of amendment application whereby she wanted to introduce the plea of alleged subletting, assignment, parting with possession to Mohan Manchandani. Learned Tribunal took note of this plea in para 8 of the impugned judgment and observed : - Unfortunately the application was declined merely on the ground that a new case was being set up whereas the fact remained that it was the subsequent event which was in continuity with the allegation of subletting that was being brought on record. As a matter of fact mere application under section 151 CPC for bringing this event to the notice of the court was sufficient instead of application under O. 6 R. 17 CPC..

5. Learned Tribunal then took into consideration the subsequent events namely the divorce between the appellant Bhawna Manchandani and her husband Mohan Manchandani and proceeded to examine the nature of possession of Mohan Manchandani in the demised premises after the divorce and concluded that after the divorce the appellant Bhawna Manchandani has left with no interest whatsoever in the suit premises or business being run therein and this amounts to assignment or parting with possession within the meaning of clause (b) of the proviso to section 14(1) of the Act. It may be noticed here that in the reply to the amendment application, appellant never disputed the fact that the divorce has taken place. In his statement on oath Sh. S.L. Dhawan, who is husband of the landlady has stated that now Mohan Manchandani is in exclusive possession of suit premises,. He had further stated that tenant has sublet, assigned or parted with possession of suit premises to Renu Manchandani or Mohan Manchandani without the written consent of the landlady. This statement was made in the year 1993 i.e before the filing of the application under Order 6 Rule 17 CPC. The consistent stand of the appellant had been that Mohan Manchandani is a joint tenant in the suit premises and is in complete control thereof. In fact it is he who has been managing the whole show. Therefore, once the tenant's stand that her husband is joint tenant in possession is rejected, the question as to the status and nature of husband's possession after the divorce becomes subject matter of scrutiny as a natural corollary. It appears that the plea of joint tenancy was set up in the written statement dated 22.11.88 so that even after divorce, Mohan Manchandani could set up plea of his having become sole tenant. This plea has been rightly rejected by both the courts below. The position of Mohan Manchandani after the departure of appellant Bhawna Manchandani due to divorce becomes that of a stranger. In his statement on oath Mohan Manchandani tried to make out a case that appellant Bhawna Manchandani continues to be his partner in the business being run in the premises but this plea is not at all, worthy of credit. He states in the cross examination that no account books were maintained about partnership business. According to him, the accounts were settled from time to time. If no account books are maintained how could then be the settlement of accounts ? This statement of Mohan Manchandani was recorded in April 1998 wherein he stated that the accounts were settled lastly in February 1988. That means since February 1988 there was no settlement of accounts whatsoever, which obviously mean that no partnership business was carried on after February 1988. Learned Tribunal rightly observed that joint tenancy or partnership alleged by Bhawna Manchandani appears to be a part of settlement for divorce so that Mohan Manchandani could continue to retain his possession over the suit premises.

6. Learned counsel for the appellant relied upon Trojan & Co. v. RM.N.N. Nagappa Chettiar- AIR 1953 Sup. Court 235, wherein it was held that decision of a case cannot be based on the ground out side the pleadings of the parties and it is the case pleaded that has to be found. Without an amendment of the plaint the Court was not entitled to grant the relief not asked for. This judgment has been referred to in the case of Bhagwati Prasad v. Chandramaul- AIR 1966 Supreme Court 735, wherein it was held that if a party asks for a relief on a clear and specific ground, and in the issues or at the trial, no other ground is covered, either directly or by necessary implication, it would not be open to the said party to attempt to sustain the same claim on a ground which is entirely new. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely, in the issues and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. Taking note of the decision in the case ( AIR 1953 SC 235) the apex court observed that what the court has to consider in dealing with such an objection is did the parties know that the matter in question was involved in the trial, and did they lead evidence about it ? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be different matter.

7. In the present case question regarding nature of possession of Mohan Manchandani over suit premises was subject matter of controversy in the pleadings. In the written statement appellant has pleaded joint tenancy which was repudiated by the landlady. The husband of landlady has stated on oath about the subletting to Mohand Manchandani. Thus parties were aware of the nature of controversy and they led evidence about it. Appellant first tried to set up the case of joint tenancy as well as partnership and led evidence about it but the Tribunal found it to be untenable. From the material on record and evidence led by the parties learned Tribunal concluded that after the divorce, Bhawna Manchandani has no interest in the suit premises whatsoever and she has parted with the possession to her ex-husband Mohan Manchandani. It is a finding of fact and having considered the respective submissions of the learned counsel for the parties and material on record, I find no reason to take a different view in the matter.

8. Learned counsel for the appellant next contended with reference to Ayyappally Mohd. Haji and Ors. v. M.M. Abdulsalam and Ors- (2001) 2 SCC 428, wherein it was held that once an application for amendment of plaint is finally disallowed, no deviation from original pleadings can be permitted. In that case application for amendment of plaint, filed along with appeal against dismissal of suit was ultimately dismissed by Supreme Court and appeal was directed to be heard on the basis of pleadings as they existed. High Court allowed second appeal, permitting plaintiff-respondents to rely on a plan annexed to a sale deed just because the said sale deed had been mentioned in the plaint. In the present case the application for amendment was rejected the learned ARC and landlord challenged that order in appeal before the Tribunal. Ground No. 8 of the memo of appeal before Tribunal relates to the landlady's objections against rejection of amendment application and learned Tribunal in para 8 of the impugned order has taken note thereof and has clearly observed that Unfortunately the application was declined merely on the ground that a new case was being set up whereas the fact remained that it was the subsequent event which was in continuity with the allegation of subletting that was being brought on record. As a matter of fact mere application under section 151 CPC for bringing this event to the notice of the court was sufficient instead of application under O. 6 R. 17 CPC.. The aforesaid observation of learned Tribunal clearly shows that the Tribunal did not agree with the learned ARC's order, rejecting amendment application filed under Order 6 Rule 17 CPC and proceeded to take into consideration subsequent events which were sought to be introduced by the amendment. Obviously, under the circumstances, learned Tribunal must be deemed to have allowed the amendment and then proceeded to examine the material on record in the light of subsequent developments. The order of learned ARC rejecting amendment application could be challenged in appeal and had, thus not attained finality. Therefore, the observations made in 2001 2 SCC page 428 will not apply to the facts of present case. Factum of divorce was admitted by Mohan Manchandani himself in his statement. His plea of joint tenancy and partnership business have also been taken into consideration by the learned Tribunal. Under the circumstances it cannot be said that any prejudice has been caused to the appellant or that they had no opportunity to meet the question of alleged subletting, assignment or parting with possession in favor of Mohan Manchandani. It is settled law that the subsequent events can be/ must be taken note of even at the stage of appeal. The appellant Bhawna Manchandani never appeared in the witness box. Obviously, it indicates that she has no interest whatsoever in the suit premises after her divorce with Mohan Manchandani. The statement of Mohan Manchandani regarding joint tenancy or alleged partnership has been rightly found to be unbelievable. Under the circumstances, the learned Tribunal was justified in arriving at obvious conclusion that Bhawna Manchandani has parted with possession of the demised premises in favor of her ex-husband Mohan Manchandani.

9. Section 39 of the Act which deals with second appeal can be invoked only if some substantial question of law is involved. In 1968 DLT 208, this court has held that substantial question of law does not mean a mere question of law. In order to be a substantial question of law must be at least be such that there is some doubt or difference of opinion or there is room for difference of opinion on the legal aspects. Mere application of settled principles of law to particular set of facts, would not constitute a substantial question of law. This second appeal is thus not maintainable as it does not involve any substantial question of law.

10. In the result this second appeal fails and is hereby dismissed.