Niader Mal Amar Nath And Anr. vs Rukmani Devi Jaipuria Charitable ...
2006 Latest Caselaw 1542 Del

JUDGMENT

Sanjay Kishan Kaul, J.

1. Smt. Rukmani Devi filed an eviction petition on 09.02.1973 against the appellants under Section 14(1)(a), (b) and (j) of the Delhi Rent Control Act, 1958 (hereinafter to be referred to as, 'the said Act') in respect of the tenanted premises bearing No. 321/322/372, Katra Gauri Shankar, Chandni Chowk, Delhi. The present premises were stated to be let out to appellant No. 1 and the tenant was stated to be in arrears of rent. It was further alleged that appellant No. 1 had sub-let / assigned or otherwise parted with the premises to appellant No. 2 without the written consent of the landlord. An allegation was also made about the appellants causing substantial damage to the property.

2. The Additional Rent Controller (hereinafter to be referred to as, 'the ARC') after recording evidence decided the dispute in terms of the order dated 23.09.1996 after a protracted litigation. The appellants were found to be in arrears of rent, but were given the benefit of Section 14(2) of the said Act in view of there being the first default. Insofar as the allegation of sub-letting is concerned, it was found that the landlady had been able to establish her case. The position was same in respect of the allegation of substantial damage to the premises, but the ARC found that the nature of damages were such that repairs would not be the appropriate remedy and, thus, appellant No. 1 was directed to pay a sum of Rs. 25,000/- as compensation to the respondent.

3. The appellants aggrieved by the said order filed an appeal before the Rent Control Tribunal (hereinafter to be referred to as, 'the Tribunal'). The cross-objections were also filed by the successors to the landlady, who had since expired and who are trustees of the respondent in the present petition. The respondent is a charitable trust. The appeals were disposed of by the common order dated 02.04.1998. No dispute was really raised in respect of the ground under Section 14(1)(a) of the said Act. The controversies were limited to Section 14(1)(b) of the said Act in respect of which the appeals of the appellants were dismissed and the cross-objections of the respondent in respect of Section 14(1)(j) of the said Act were allowed and a direction was passed in respect of the damages granted by the ARC that instead of the same the substantial damage should be removed and the property be put back in the original position.

4. The appellants thereafter filed the second appeal, which has been admitted. However, no question of law has been framed at the stage of admission. It may be noticed that the present appeal arises under Section 39 of the said Act as it stood earlier. Prior to the amendment of the said Act in 1988, the first appeal to the Tribunal lay both on questions of fact and law, while the second appeal is maintainable only on questions of law before this Court. After the amendment in 1988, the appeal before the Tribunal is confined to a question of law and the provision for second appeal stands deleted. Since the present matter relates to eviction proceedings filed prior to the amendment, the second appeal would only be on a question of law.

5. Learned Counsel for the appellants contended that the first question of law arises from the misreading of the terms of Partnership Deed, which has resulted in both the courts below coming to the conclusion that a case of sub-letting had been made out.

6. Learned Counsel referred to the judgment of learned Single Judge of this Court in Hari Narain and Anr. v. Smt. Bela Devi 1993 (2) RCR 653 to advance a proposition that the correct interpretation of a partnership deed is a question of law.

7. A reading of the judgment of the ARC in respect of this controversy would show that the ARC has, in fact, rightly taken note of the concept that in case of sub-tenancy, it is difficult for the landlord to establish the payment of rent by the sub-tenant to the tenant and the landlord can only show circumstances from which the Court may be justified in drawing inferences that the premises had been sub-let.

8. The Partnership Deed was produced by the appellants as Ex. RW-3/1. However, no account books were produced as the same were stated to be destroyed in a fire in 1967. The account books for the period from 1967 onwards were also not produced. Insofar as the Partnership Deed dated 09.02.1962 is concerned, it was found that the stamp paper was purchased on 12.09.1963, subsequent to the date of execution of the Deed and, thus, the document had been detained by the Collector of Stamps for enquiry. There were two Partnership Deeds - one of 09.02.1962 and the other of 25.04.1967 - both of which were deficiently stamped and were, thus, directed to be sent to the Collector of Stamps. The Partnership Deed dated 25.04.1967 was thereafter stamped and was exhibited as Ex. R-4. The ARC, thus, found that in case of one of the Partnership Deed, there was a doubt about the authenticity. Not only that, from the other Partnership Deed, it was deciphered that rent used to be paid by appellant No. 2 to appellant No. 1 and this was also apparent from the assessment orders. It is in view of these circumstances that the ARC found that a case of sub-letting had been made out.

9. The Tribunal also considered this aspect in depth. The inconsistency in the testimonies of the witnesses was taken into account as also what was stated in cross-examination. RW-3, Shri Narain Kumar Jain in support of the written statement had stated in examination-in-chief that the tenant of the premises was initially an HUF firm with his father, Shri Amar Nath as Karta and himself as his brother as co-parceners. The firm was stated to be reconstituted in 1962 into a partnership with three of them as partners. However in cross-examination, he is stated to have admitted that in 1948 when the tenancy rights of the premises fell to the share of his father, the tenancy was created in his father's name as sole proprietor of M/s. Niader Mal Amar Nath. The testimony of RW-3 has, thus, been disbelieved. The said witness had also stated that khoka shop had been converted into a puce shop after the fire in November, 1967 in Naya Katra damaging many shops. The Tribunal also found that appellant No. 2 was, in fact, a different firm from appellant No. 1 which was originally a sole proprietorship concern. The complete conspectus of evidence has been discussed to establish that the two firms were different.

10. In my considered view, there are, in fact, concurrent findings in respect of the documents being fabricated and the appellants being two legal entities where sub-letting was established by appellant No. 1 to appellant No. 2. Even rent was stated to be paid from appellant No. 2 to appellant No. 1.

11. I am unable to accept the contention of learned Counsel for the appellants that these documents should be once again read in a second appeal to arrive at a different conclusion. Even otherwise, a reading of the Partnership Deed does not show that the same has been wrongly read as alleged by learned Counsel for the appellants.

12. In my considered view, there is really no question of law, which has been framed or arises in this behalf and, thus, it cannot be said that the eviction order in respect of the grounds under Section 14(1)(b) of the said Act suffers on account of any legal infirmity.

13. Insofar as the grounds under Section 14(1)(j) of the said Act are concerned, learned Counsel for the respondents points out that the appellants have filed only one appeal and ought to have filed two appeals if they sought to challenge the said order. Be that as it may, the fact remains that there is concurrent finding of both the courts below on the question of substantial damage. The ARC took the view that the damages are not of such a nature for which repairs would be the remedy and directed the appellants to pay compensation of Rs. 25,000/-. The Tribunal, however, found that once substantial damage has been caused by constructing one room, one store on the second floor, which was previously open terrace with only a toilet, the request of the landlord must be accepted and the second construction must be removed. The building is an old one and, thus, the construction would be putting extra weight on the building. Girders had been put without permission and consent of the landlords. Similarly, the wooden thara known as wooden khoka was completely changed into a puce shop with the help of iron girders fixed in the outer wall of the tenanted shop. Thus, the complete character and nature of the building was sought to be changed and the building must be directed to be put back to its original position.

14. In view of all the aforesaid reasons, I am of the considered view that the present appeal raises no question of law and is dismissed with costs of Rs. 5,000/-.

CM No. 7600/2005

15. This application has been filed by the respondent / landlord seeking directions against the petitioners / tenants to pay damages for use and occupation from 23.09.1996, the date of the eviction order. The respondent in this behalf has relied upon the judgment of the Apex Court in Atma Ram Properties (P) Ltd. v. Federal Motors Pvt. Ltd. where it has been held that the tenancy stands terminated with the passing of a decree of eviction and the tenant is liable to pay mesne profits or compensation for use and occupation of the premises at the same rate at which the landlord would have been able to let out the premises and earn rent if the tenant had vacated the premises. In such a case, the landlord was not bound by the contractual rate of rent effective for the period preceding the date of the decree. This view stands affirmed by the Supreme Court in Anderson Wright & Co. v. Amar Nath Roy and Ors.

16. The respondent has claimed that the prevalent rent would be about Rs. 1,50,000/- per month. It has also been mentioned that respondent No. 1 has, in fact, further illegally sub-let the premises to third-parties and is getting monthly rental of about Rs. 50,000/- per month from one floor and it is more than Rs. 45,000/ per month from another floor.

17. The respondent also seeks to take advantage of the written statement filed by the appellants before the Competent Authority (Slum Area) they have stated that value of the premises in suit is more than Rs. 1.5 crores and, thus, it is pleaded that a yield of 12% per annum would result in a monthly rent of Rs. 1,50,000/- per month. The aforesaid allegations have been denied by the respondent.

18. In my considered view, the material placed on record is not sufficient to determine the exact rate of damages which must be paid. I am, however, of the considered view that in such a matter damages ought to be determined and paid to the landlord, especially taking into consideration the long period which has elapsed. The eviction proceedings went on for almost 23 years before the trial court and even thereafter 10 years have gone bye before the first appellate court and this Court. The appellants having taken benefits of these orders are now liable to pay damages to the respondent in respect of the same. However, to determine the amount payable or get some broad indication about the prevalent rent, I consider it appropriate to direct an enquiry to be made in this behalf by the Registrar General of this Court and after calling for evidence from both the parties to submit a report to this Court by the next date of hearing.

19. List before the Registrar General on 18.09.2006.

20. List before the Court on 13.12.2006.