Delhi High Court

Smt. Chitra Garg vs Shri Surinder Kumar Bansal & Anr on 9 September, 2009

Author: Rajiv Sahai Endlaw

     *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                IA No.2028/1997 IN CS(OS) No.2565/1993

%                        Date of decision: 9th September 2009

SMT. CHITRA GARG                                        ....Plaintiff
                         Through:    Mr. Arun Mohan, Sr. Advocate with
                                    Mr. Arvind Bhatt, Advocate


                                    Versus

SHRI SURINDER KUMAR BANSAL & ANR ... Defendants


                         Through:     Mr. N.K. Kaul, Sr. Advocate with Mr.
                                      Ashish Dholakia & Mr. Adarsh
                                      Priyadarshi, Advocates.


CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1.    Whether reporters of Local papers may
      be allowed to see the judgment? Yes

2.    To be referred to the reporter or not?      Yes

3.    Whether the judgment should be reported
      in the Digest?  Yes


RAJIV SAHAI ENDLAW, J.

1. The defendant has applied for dismissal of the suit as barred by

Section 50 of the Delhi Rent Control Act. This court also on 6 th

November, 2008, on a preliminary hearing on various pending

applications finding that the plaintiff's case is that the property,

subject matter of the suit was let out to one school of which one Mr.

Pires was the proprietor and the defendant is now in possession of

the property and further finding that it is the admitted position that

the tenancy of the school was protected by the Delhi Rent Control

Act, 1958, called upon the counsels to first address on the

maintainability of the suit. The senior counsels have been heard and

the counsels have also filed detailed synopsis of submissions with

plethora of judgments.

2. The plaintiff instituted this suit against two defendants, for the

relief of possession of property No. R-96, Greater Kailash-I, New

Delhi and for recovery of arrears of and future mesne profits with

interest etc. It is inter-alia the case of the plaintiff in the plaint that

the said property was let out by predecessors in title of the plaintiff

to "Mr. Pires's Private School" through its proprietors Mr. Pires at a

monthly rent of Rs.1,800/- w.e.f. 1st October, 1971 for three years; on

expiry of three years the lease was extended and a deed dated 27th

September, 1974 was extended. That the extended term of the lease

also expired in 1977; that on the failure of Mr. Pires to vacate the

premises, a petition under Section 14 (1) (e) of Rent Act was filed in

1978; that Mr. Pires died on 19th November, 1980 leaving a son and

a daughter; the predecessors in title of the plaintiff also died in 1982

and the property was inherited by his heirs who were substituted in

the proceedings aforesaid under Section 14 (1) (e) of the Rent Act;

that the petition under Section 14 (1) (e) of the Rent Act was

dismissed on 8th December, 1985 finding the premises to have been

let out for residential-cum-commercial purposes; that the revision

petition preferred to this court against the said order was dismissed

in default and at the time of institution of the suit the application for

restoration of the same was pending; that the heirs of the

predecessors in title of the plaintiff also filed a petition for eviction

on the ground of sub letting [Section 14 (1) (b)] as well as another

petition under Section 14 D of the Rent Act; in the meantime "Pires"

abandoned the premises - it was after 1984; that none of the Pires

had been heard of for the last many years; that the defendant No.2

was an employee of Pires's Private School who later on self styled

herself as Principal and the defendant No.1 was her husband and

Legal Advisor of Mr. Pires; that the defendants found it convenient to

unauthorizedly entered the house; during the lifetime of Mr. Pires

the defendant No.2 had access to the property as an employee and

upon abandonment of the property by the Pires, the defendants

entered into possession of the property unathorizedly; that the

defendant No.2 had been alleging herself to be a partner of Pires's

Private School and therefore a tenant in the premises; in view of the

said plea of the defendant No.2 the predecessors in title of the

plaintiff had impleaded the defendant No.2 as a respondent to the

petition for eviction under the Rent Act filed with respect to the

premises though without admitting her as a tenant; that on 19th

February, 1992 the plaintiff acquired title to the said property and

upon the refusal of the defendants to vacate the property, instituted

the suit for possession.

3. The defendants contested the suit by filing a written statement.

It was inter-alia pleaded that the defendant No.1 had nothing to do

with the property and had been wrongly impleaded; that the

defendant No.2 had become the owner of the property by adverse

possession in October, 1989, her adverse possession having started

w.e.f. October, 1977; with respect to the petition for eviction on the

ground sub letting [Section 14 (1) (b)] it was pleaded that the same

had been filed on false averments and with respect to the petition

under Section 14 D of the Act it was informed that the same after

the institution of the suit on 11th February, 1994 was dismissed on

the statement of the counsel for the petitioner that he had no

instructions; various other pleas were taken but with which we are

not concerned at this stage.

4. The plaintiff filed a replication in which with reference the

petition for eviction under Section 14 (1) (e) of the Rent Act, it was

contended that in the pleadings therein Mr. Pires had not disputed

that he was the tenant and had not pleaded that the defendant No.2

was the partner or also a tenant in the premises; with respect to the

petition for eviction on the ground of sub letting it was pleaded that

the defendant No.2 in her written statement therein had pleaded to

be a partner of M/s Pires's Private School, tenant in the premises.

5. The statement of the defendant No.2 was also recorded under

Order 10 of the CPC on 15th May, 1995 wherein also the defendant

No.2 has stated that she and Mr. Pires were partners in the school

which was a tenant in the premises and she bought the school from

Mr. Pires and after the death of Mr. Pires she became the owner of

the school as well as the property. She admitted that she had been

depositing the rent of the property in the court and also stated that

though her possession of the property was that of a tenant she was

the owner because she was occupying the property for more than 12

years. She admitted that she had not paid any House Tax of the

property but claimed to have become the owner by adverse

possession. Perhaps on court query, she clarified that "my claim is

only on adverse possession".

6. On the pleadings in the suit, on 31st July, 1995 the following

issues were framed:-

1. Whether the suit property has been properly valued for

purpose of Court Fees?

2. Whether the suit is barred by time?

3. Whether the plaintiff is owner of the property? If not, to

what effect?

4. Whether the defendant No.2 has become owner by

adverse possession?

5. Whether plaintiff is entitled to claim mesne profits or

damages for use and occupation of the premises by the

defendant? If so, at what rate and for what period?

6. Whether the plaintiff is entitled to recover possession?

7. Relief.

7. In spite of the issues having been framed 14 years ago,

unfortunately the trial has not begun and the parties have remained

embroiled in applications only. The defendant No.1 died during the

pendency of this suit and it has been held that his plea being that he

has no interest in the property, his heirs need not be substituted. The

suit as such survives against the defendant No.2 only.

8. Besides the application under consideration, it is relevant to

note that inter alia the following other applications are also pending:

a. IA No.4932/1998 of the plaintiff for a decree for

possession of admissions under Order 12 Rule 6 of the

CPC;

b. IA No.10486/1998 of the defendant, also under Order 7

Rule 11 of the CPC inter-alia on the ground of the suit

being barred by time as well as under Section 50 of the

Rent Act and Section 9 of the CPC;

c. IA No.10487/1998 also of the defendant under Order 7

Rule 11 of the CPC, again on the ground of the suit being

barred by Section 50 of the Rent Act;

d. IA no.12804/2000 of the defendant for amendment of the

plaint to take a plea in the written statement of the suit

being barred under Section 50 of the Rent Act;

e. IA No.1472/2001 of the defendant, again for amendment

of the written statement.

9. That it will be clear from the above that the ground on which

IA No.2028/1997 under consideration is filed is not a plea in the

written statement. In fact applications for amendment to incorporate

the said pleas in the written statement are pending. Though,

ordinarily the applications of the defendant for amendment of the

written statement would have been considered prior to this

application, but in view of the pleas sought to be taken therein being

admitted by the plaintiff even in the plaint by filing the copies of the

eviction petitions including on the ground of sub letting impleading

the defendant No.2 also, need is not felt to defer this order,

especially considering the long history of the litigation.

10. On 6th November, 2008, this court was prima facie of the

opinion that once it was the admitted position that the defendants

had come into possession of the property through the tenant in the

premises, the remedy of the plaintiff was under Section 14 of the

Rent Act and the jurisdiction of the Civil Court was barred under

Section 14 r/w Section 50 of the Rent Act. Section 14 of the Rent Act

starts with a non obstante clause and ousts jurisdiction of all courts

other than of a Rent Controller to pass a decree for possession of any

premises in favour of a landlord and against a tenant. Section 50 of

the said Act expressly ousts the jurisdiction of the courts with

respect to the reliefs which can be granted by the Controller.

11. The contention of the senior counsel for the plaintiff bereft of

all details is that the plaintiff has not approached this court with a

plea of the defendant being a sub tenant or having come into

possession of the premises through the tenant in the premises. It is

argued that the case of the plaintiff is that the tenant has abandoned

the premises and the defendants have unauthorizedly occupied the

same. It is further the case that the tenant has by the act of

abandonment of the premises, impliedly surrendered the tenancy,

which is one of the modes prescribed in Section 111 of the Transfer

of Property Act of determination of lease. It is also urged that in the

written statement as existing as well as in the statement recorded in

the court of the defendant No.2, rights in the property are claimed

only by way of adverse possession. It is thus contended that the

questions arising for determination and on which issues have been

framed could be adjudicated by this court only and not by the Rent

Controller.

12. During the course of hearing, I had drawn the attention of the

senior counsel for the defendants to the dicta of the Division Bench

of this court in All India Tibbi Conference Vs. Haji Mohd. Shafi

AIR 2004 Delhi 371. That was an appeal from a decree for

possession. The plaintiff in that case also had contended that the

tenant on the first and second floor of the property had inducted the

defendants in the first floor portion of the premises and parted with

possession thereof to the defendant without the consent or

permission of the plaintiff; that the defendants had trespassed into

and occupied the second floor portion of the premises after the

demise of the tenant. The defendant in that case also had contested

the suit on the plea of adverse possession. The Trial Court decreed

the suit. In appeal before this court, it was contended that qua the

first floor the suit was barred by the provisions of Section 50 of the

Rent Act. The Division Bench of this court held that since the

plaintiffs had in the plaint nowhere used the expression sub tenant

with regard to the status of the defendant, the jurisdiction of this

court was not barred. The pleas in the plaint of the tenant having

inducted the defendants in the first floor of the property and having

parted with possession without the consent or permission of the

owner were not held to be attracting the provisions of Section 14 (1)

(b) of the Act. This court also held that in the absence of any specific

defence that the defendants were sub tenant in the premises, no

case attracting the provisions of Section 14 (1) (b) of the Rent Act or

ousting the jurisdiction of Civil Court was made out.

13. The senior counsel for the defendant has sought to distinguish

the aforesaid judgment by contending that in that case this court

found that the plaintiffs had not set up a case of Section 14 (1) (b) of

the Rent Act. It is argued that in the present case, the predecessor

in title of the plaintiff had instituted a petition for eviction under

Section 14 (1) (b) of the Rent Act. Though the senior counsel for the

plaintiff has with reference to the pleadings argued that in the plaint

in the present case also there is no such plea but in my view, the

plaintiff having made the petition filed under Section 14 (1) (b) as an

Annexure P-5 to the plaint is deemed to have pleaded so. This court

in K.K. Manchanda Vs S.D. Technical Services Pvt. Ltd RA

320/2008 in CM(M) 1205/2007 and Modern India Buildings Vs

President, Super Bazar Cooperative Store Limited 43 (1991)

DLT 287 has held that annexures to the plaint are part of the

pleadings. A perusal of Annexure P-5 to the plaint shows that the

said petition was filed against the legal heirs of Mr. Pires as tenant

and the defendant No.2 was impleaded therein as a sub tenant. It

was the express plea in the said petition that the tenant i.e. the legal

heirs of Mr. Pires or their predecessors had sub let, assigned and

parted with possession of the premises to the defendant No.2.

14. The senior counsel for the defendant has next drawn attention

to South Asia Industries Pvt. Ltd. Vs. S. Sarup Singh AIR 1966

SC 346 to buttress the proposition that Section 14 (1) (b) of the Rent

Act is applicable even when the tenant ceases to exist; in that case

upon merger. It is urged that thus the factum of Mr. Pires or his

heirs being not available or being unheard of as pleaded would not

come in the way of the remedy, if any, of the plaintiff being by way of

a petition under Section 14 (1) (b) of the Rent Act only and not by

way of this suit.

15. Reliance is also placed on Bhairab Chandra Nandan Vs.

Ranadhir Chandra Dutta (1981) 1 SCC 383 & S.A.Vengadamma

Vs. Jitendra P. Vora (1977) 11 SCC 334 and finally on Joginder

Singh Sodhi Vs. Amar Kaur (2005) 1 SCC 31 to show that even in

a case where the tenant is stated to be living elsewhere and the

tenanted premises were in control and possession of the sub tenant,

petition under Section 14 (1) (b) was filed. It is argued that thus

merely because the alleged tenant is not available will not be a

ground to vest jurisdiction in this court which otherwise is barred by

Sections 14 & 50 of the Rent Act.

16. Per contra, the senior counsel for the plaintiff has urged that a

statutory tenant by parting with possession forfeits the protection of

the Rent Act (The Calcutta Credit Corporation Ltd. vs. Happy

Homes (P) Ltd. AIR 1968 SC 471); that the protection of the Rent

Act is not extended to a tenant who has abandoned occupation of the

premises (Gurcharan Singh vs. Shri V.K. Kaushal AIR 1980 SC

1866; that if the tenant parts with possession of the premises the

same would be treated as vacation (Jaspal Singh v. Additional

District Judge, Bulandshahr AIR 1984 SC 1880); that the

protection of the Rent Act is meant for the original grantee only

(Shri Amar Singh Trilochan Singh v. Smt. Jasoti 105 (2003)

DLT 499) and contended that in the present case, the tenant has left

the premises and the civil suit to remove the sub tenant is

maintainable and no petition under Section 14 (1) (b) of the Rent Act

lies.

17. I may, at this stage, notice that the counsels have in their

respective synopsis filed in this court taken various other

arguments/pleas which were not even orally made. On the said

synopsis having been kept on record, need is not felt to burden this

judgment with the same.

18. To my mind, the question raised is not free from doubt. As a

proposition of law, a owner/landlord cannot be held entitled to

approach the Civil Court on the plea of the premises being in

occupation of a sub tenant and thus there being no need to approach

the Rent Controller. The same can become a tool in the hands of

unscrupulous litigants to obtain decrees for possession without

impleading the tenant as a party and in pursuance thereto

dispossessing the tenant from the premises.

19. However, in the facts of this case, need is not felt to go into

that question as in my opinion the matter can be disposed of on

another point. The senior counsel for the defendant had during the

course of hearing handed over the copy of the order dated 17 th May,

1996 (i.e. after the institution of the suit) made in the petition

preferred by the predecessors in title of the plaintiff under Section

14 (1) (b) of the Rent Act. In the said petition, the present plaintiff on

purchase of the property applied for substitution. The defendant

No.2 herein however opposed the substitution of the plaintiff as

petitioner/landlord in the petition under Section 14(1)(b) of the Rent

Act, for the reason of having instituted the present suit. It was

contended by defendant No.2 that the plaintiff in the plaint in the

present suit having taken a stand that the tenant had abandoned the

premises and the defendant No.2 was/is a trespasser therein, the

right to continue the petition under Section 14(1)(b) of the Rent Act

did not survive to the plaintiff. The Rent Controller on perusal of

plaint in this suit held that the averments here did not constitute a

case under Section 14(1)(b) of the Rent Act and the plaintiff could

not be permitted to continue the petition for eviction on ground of

subletting.

20. On perusal of voluminous suit record I also find it mentioned

therein that the plaintiff herein preferred appeal being RCA

490/1996 against the order dated 17th May, 1996 (supra) of the Rent

Controller and which was apparently opposed by the defendant No.2;

the plaintiff withdrew the said appeal on 25th February, 2003.

21. It is not the case that the plaintiff after purchasing the

property instituted any petition on the ground of subletting or under

Section 14(1) (b) or for that matter, under the provisions of the Rent

Act, with respect to the property.

22. A perusal of the entire record has revealed to me two

important aspects:

A. The defendants or defendant No.2 neither in their written

statement nor otherwise contested this suit as barred by

the provisions of the Rent Act. The defendant No.2 set up a

title as owner of the property by adverse possession. Issues

were accordingly framed. When the plaintiff, besides

instituting this suit sought to also pursue the proceedings

under Section 14(1)(b) of the Rent Act instituted by earlier

owner/landlord, the defendant No.2 opposed the same. The

defendant No.2 succeeded in stopping the plaintiff from

proceeding against defendant No.2 on the ground of

subletting under the Rent Act - for the reason of plaintiff

having instituted this suit;

B. However, after having so stopped the plaintiff from

proceeding under the Rent Act, the defendant No.2 now

seeks to oust the plaintiff from this court as well - for the

reason of the plaintiff being required to proceed under the

Rent Act.

I have minutely combed the file and do not find any such plea

having been taken by defendant No.2 till 17th May, 1996 when the

defendant No.2 succeeded in obtaining dismissal of application of

the plaintiff for substitution in 14(1)(b) proceedings (supra). The first

application for amendment is dated 29th November, 1996.

23. To say the least, the said conduct of the defendant No.2

appears to be malafide and inequitable. The question is, can the

defendant No.2 be permitted to take such stand in courts? The

courts cannot be silent spectators to such practices. The defendant

No.2 by so approbating and reprobating and/or by so blowing hot

and cold, cannot oust the plaintiff from proceeding for eviction of

defendant No.2, neither before the Rent Courts nor before the Civil

Courts. The defendant No.2 did not take the plea of proceedings

before the Rent Court being the appropriate remedy for the plaintiff,

till she succeeded in having the application of the plaintiff for

substitution in Rent Court dismissed for the reason of institution of

this suit. Thereafter the defendant No.2 wants to oust the plaintiff

from this court also, this time on contradictory plea of jurisdiction of

this court being barred because of availability of Rent Court.

24. The courts have always frowned upon such conduct of litigant

and not allowed the same. The Supreme Court recently in City

Montessori School Vs. State of Uttar Pradesh and Ors

MANU/SC/0250/2009 reiterated the doctrine that a person cannot be

permitted to approbate or reprobate at the same time. In that case

in an earlier proceeding the appellant before the court had not

protested to a notification being issued. It was held that the

appellant must be deemed to have accepted the suggestion for

issuance of such notification without any demur whatsoever; the

appellants were held disentitled to subsequently challenge the same.

25. The Division Bench of this court in Umrao Singh Vs. Man

Singh AIR 1972 Delhi 1 also held that once a party had got

proceedings of the other before authorities under the Delhi Land

Reforms Act dismissed on the ground that the same was not

applicable, that party upon the other instituting the suit in the Civil

Court could not be heard to say that the jurisdiction of the Civil

Court was barred and the proceedings lay before the authorities

under Delhi Land Reforms Act. It was held that to allow the party to

take up such inconsistent pleas and to blow hot and cold and to play

fast and loose according to his convenience would result in a

situation which is not only anomalous but is also manifestly

inequitable and unjust and such a situation cannot be countenanced

by the Courts. It was held that consistency of proceeding is required

of all those who come or are brought before the court and that one

who has taken a particular position deliberately in the course of a

litigation must act consistently with it.

26. Reference must also be made to Amritlal N. Shah

Vs. Alla Annapurnamma AIR1959AP9. There upon proceedings

under the Rent Act being filed, the party contended that he was not a

tenant of a building within the meaning of the Rent Act but

thereafter upon a suit for arrears of rent and eviction on the ground

of expiry of lease being filed, took a stand that he was protected

under the Rent Act. He was held not entitled to do so. Bigelow on

"Estoppel" was quoted with approval as :

"If parties in Court were permitted to assume inconsistent positions in the trial of their causes, the usefulness of Courts of justice would in most cases be paralysed, the coercive process of the law available only between those who consented to exercise, could be set at naught by all. But the rights of all men, honest and dishonest, are in the keeping of the Courts and consistency of proceedings is therefore required of all those who come or are brought before them. It may accordingly be laid down as a broad proposition that one who, without mistake induced by the opposite party, has taken a particular position deliberately in the course of litigation must act consistently with it; one cannot play fast and loose. The principle under consideration will apply to another suit than the one in which the action was taken where the second suit grows out of the judgment of the first. It is laid down that a defendant who obtains judgment upon an allegation that a particular obstacle exists cannot in a subsequent suit based upon such allegation deny its truth."

Similarly, Hemantha Kumari Devi Vs Prasanna Kumar AIR

1930 Cal. 52 was also cited with approval as laying down:

"It is well settled that a party litigant cannot he permitted to assume inconsistent positions in Court, to play fast and loose, to blow hot and cold, to approbate and reprobate, to the detriment of his opponent; and that this wholesome doctrine applies not only to the successive stages of the same suit, but also to another suit other than the one in, which the position was taken up, provided the second suit grows out of the judgment in the first."

The court in that case also considered whether this principle

will apply on a question of jurisdiction of court, since there can be no

estoppel against a statute or on a question of law and no amount of

consent can confer jurisdiction on a court. The Division Bench held

that the principle of estoppel arising out of parties taking

inconsistent positions will override.

27. In this regard, the following judgments cited by the senior

counsel for the plaintiff may be noticed:

i) Delhi Cantonment Board Vs S.N. Sahni RSA No.

74/2007 decided on 2nd January, 2008 holding that bar

of jurisdiction of civil court created by Rent Act would

come into force only upon proof of tenancy and not of