Mahesh Kumar vs Kamal Kanta Sharma
2010 Latest Caselaw 1972 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI


             + RC. REV. 76/2010 and CM 6109 & 6110/2010


                                              Decided on 16.04.2010

IN THE MATTER OF :

MAHESH KUMAR                                             ..... Petitioner

                        Through: Ms. Jaya Tomar, Advocate along with
                        petitioner in person

                   versus


KAMAL KANTA SHARMA                                       ..... Respondent

                        Through: Nemo


CORAM

* HON'BLE MS.JUSTICE HIMA KOHLI

     1. Whether Reporters of Local papers may
        be allowed to see the Judgment?                  No

     2. To be referred to the Reporter or not?           No

     3. Whether the judgment should be
        reported in the Digest?                          No


HIMA KOHLI, J.

1. The present petition is directed against an order dated

2.3.2010 passed by the learned ARC disposing of the eviction petition

preferred by the respondent/landlady under Section 14(1)(e) of the

Delhi Rent Control Act, 1958 in respect of a shop situated in premises

bearing No.A-13, Raj Park, Sultanpur Majra, Delhi. By the aforesaid

order, the learned ARC recorded the statement of the petitioner/tenant

(respondent in the court below) as also the counsel for the

respondent/Landlady that the parties had arrived at a settlement and

accordingly disposed of the eviction petition.

2. On 12.3.2010, the petitioner preferred an application

seeking recall of the aforesaid order dated 2.3.2010, which was

dismissed by the learned ARC vide order dated 15.3.2010, by

observing that on the aforesaid date, a compromise was arrived at

between the parties and there is no allegation of any forgery by the

petitioner/tenant.

3. The stand of the petitioner/tenant in the present case is

that on 2.3.2010, when his statement was recorded, he was unaware

of the fact that he was required to vacate the tenanted shop as also

the second shop situated in the same premises by 31.3.2011. It is

stated by the counsel for the petitioner that her client does not know

English and cannot understand the said language and that he normally

signs in Hindi. It is further stated that the compromise recorded on

2.3.2010 is not in accordance with law as no specific terms and

conditions of the settlement were recorded by the learned ARC, apart

from the period upto 31.3.2001, sought by the petitioner/tenant to

vacate both, the tenanted premises and the second shop, to which he

was required to shift by 1.4.2010. The petitioner/tenant has also

sought to blame his previous counsels for not explaining to him the

terms and conditions of the settlement.

4. I have heard the counsel for the petitioner and have also

perused the documents filed along with the present petition.

5. The impugned order dated 2.3.2010 is very brief. The

learned ARC permitted the eviction petition to be dismissed as

withdrawn in view of the statement of the parties that they had settled

their dispute. In the first instance, the statement of the

petitioner/tenant was recorded by the learned ARC. The

petitioner/tenant stated that he and the respondent/landlady had

agreed that he will shift from the existing shop to the corner shop

within one month, by 1.4.2010 and he further undertook to vacate the

tenanted premises under his occupation on or before 31.3.2011. After

his statement was recorded, the petitioner/tenant affixed his

signatures in Hindi in the margin of the order sheet. Along with the

signatures of the petitioner/tenant, are the signatures of his counsel,

duly identifying him. Thereafter, the statement of the counsel for the

respondent/landlady was recorded, accepting the terms and conditions

of the settlement and seeking liberty to withdraw the eviction petition

as satisfied. The signatures of the counsel for the petitioner/tenant

were also affixed in the order sheet.

6. After recording the statement of the petitioner/tenant and

the counsel for the respondent/landlady, the learned ARC passed the

following order:-

"The statement of counsel for the petitioner has been recorded separately. I have perused the same. In view of the statement the suit is dismissed as satisfied. Parties shall be bound by their respective statements. No Order as to cost. Original documents if any be returned to the parties subject to filing of signed photocopies thereof. File be consigned to Record Room."

7. Counsel for the petitioner/tenant states that as the

petitioner/tenant did not understand the import of the aforesaid order

and realized the effect of the same only after coming out of the court,

he filed an application on 12.3.2010 before the learned ARC, seeking

recall/review of the aforesaid order.

8. It is pertinent to note that in the said application(Annexure

R-12), the petitioner/tenant stated that on 2.3.2010, his previous

counsel suggested to him outside the court that he would lose the case

and that if he wanted to save his case, he should ask the court for

grant of two years' time to vacate the tenanted premises. It is stated

in the application that "by misunderstanding", the petitioner/tenant

made the statement as recorded in the order dated 2.3.2010. It is

further averred in para 3 of the application that after recording his

statement, the petitioner/tenant "realized his mistake" and contacted

the previous counsel, who told him that nothing could be done. As a

result, he engaged another counsel to file the review application. As

noted above, the said application for review was also dismissed vide

order dated 15.3.2010.

9. On enquiry as to the educational qualification of the

petitioner/tenant, counsel for the petitioner/tenant states that he has

passed Class X, but he is not familiar with English language, as he did

his schooling from a government school. The aforesaid submission is

not sufficient to explain away the statement of the petitioner/tenant,

as recorded by the learned ARC on 2.3.2010. It is not as if the

petitioner was not assisted by his counsel on the aforesaid date. It is

also not the case where the petitioner's statement was not recorded by

the court itself. The petitioner/tenant was present in the court and

was given an oath before his statement was recorded by the court.

While recording the statement of the petitioner/tenant, it was also

recorded that the said statement had been made by him voluntarily

and he would remain bound by the same. It is hard to believe that the

petitioner/tenant was unaware of the fact that under the terms of the

compromise arrived at by him with the respondent/landlady, he had

agreed to shift from the shop which was under his occupation(subject

matter of the eviction petition), to a corner shop in the same premises

on or before 1.4.2010 and further, he had agreed to vacate the second

premises also on or before 31.3.2011.

10. If the petitioner had a grievance with regard to any

misunderstanding, which he claimed came to his knowledge

immediately after his statement was recorded followed by the passing

of the impugned order, in view of the urgency of the matter, nothing

precluded him from returning to the learned ARC on the very same

day, or even on the next day. He however chose to file the review

application after 10 days. Pertinently, though the petitioner has a

grievance against the previous counsel who appeared for him on

2.3.2010 and through whom the leave to defend the application was

filed on his behalf that he was misled, no complaint was filed by him

against the said counsel till the date of institution of the present

petition and for that matter, even till the last date of hearing, i.e.,

12.4.2010. The said query was posed to the counsel for the

petitioner/tenant on 12.4.2010. However, on the said date, after

addressing arguments at some length, learned counsel sought an

adjournment on the ground that she wished to refer to certain

judgments. Today, she starts by claiming that the petitioner has now

filed a complaint against the previous counsel before the Bar Council of

Delhi. It is obvious that the petitioner/tenant has got wiser after the

event and such a complaint lodged after 12.4.2010, can be treated as

nothing but a motivated one, lodged by the petitioner/tenant only with

the intention of trying to wriggle out of the statement made by him

voluntarily before the learned ARC. The said complaint can therefore

not be taken into consideration while deciding the present petition.

11. The second contention of the counsel for the

petitioner/tenant that the compromise is not binding and not in

accordance with law as the same is not in writing, that it is not a

detailed one specifying the other terms and conditions of settlement, is

also devoid of merits. If the learned ARC did not record the rate of

rent payable, or date of payment or the manner of payment of

electricity bills etc. in respect of the tenanted shop, while disposing of

the petition, it only goes to show that all the other terms and

conditions of tenancy remained unchanged and the petitioner/tenant

would continue to pay the rent at the agreed rate to the

respondent/landlady and clear the other dues as he was doing earlier,

till he vacates the suit premises.

12. Reliance sought to be placed by the counsel for the

petitioner/tenant on the case of Sri Swami Krishnanand Govindanand

Vs. M/s M.D.Oswal Hosiery (Regd.) reported as AIR 2002 SC 1162,

is of no avail as in the aforesaid case, it was only a statement of the

counsel for the petitioner/tenant conceding the eviction that resulted

in a compromise being recorded by the learned ARC. As per the facts

of the aforesaid case, the respondent/tenant therein challenged the

settlement recorded by the ARC by filing a review application, which

was dismissed. He then filed a writ petition challenging the validity of

the eviction order which was dismissed as withdrawn and he filed an

appeal against the order of eviction before the Rent Control Tribunal

which was also dismissed. When the appellant/landlord filed an

execution petition against the respondent/tenant, he raised objections

to the same which were dismissed. The said order was challenged by

the respondent/tenant before the Rent Control Tribunal unsuccessfully.

Aggrieved by the order of the Rent Control Tribunal, the

respondent/tenant preferred a second appeal which was allowed by

the High Court. The said order of the High Court was assailed by the

appellant/landlord before the Supreme Court. The SLP of the

appellant/landlord was dismissed by the Supreme Court with the

observation that the compromise like a contract postulates consensus

between two parties and that a statement of counsel conceding the

grounds of eviction and seeking some time for the respondent to

vacate the premises, cannot be termed as a compromise.

13. Unlike the facts of the aforesaid case, in the present case, it

was the statement of the petitioner/tenant himself which was recorded

in Court by the learned ARC. This was followed by the statement of the

counsel for the respondent/landlady that the terms and conditions of

settlement as stated by the petitioner/tenant were acceptable to his

client. Hence the mutuality between the parties is apparent, and as the

contract for all effects and purposes was complete, it cannot be stated

to be one in which there was absence of consensus between the

parties. It is also pertinent to note that even in the application filed by

the petitioner/tenant seeking review of the order dated 2.3.2010, he

did not deny having made the statement that he did before the

learned ARC. He only stated that he realized that "there was a

mistake". That the petitioner/tenant has had a second thought after

entering into an agreement and seeks to backtrack from his settlement

with the respondent/landlady, cannot be a ground to assail the

impugned order. There is no infirmity in the said order, which deserves

interference. The same is in accordance with law.

14. At this stage, counsel for the petitioner/tenant states on

instructions from her client that he is ready and willing to hand over

vacant peaceful possession of the tenanted premises to the

respondent/landlady on or before 31.3.2011 in terms of the

settlement, but for the said duration, he may be permitted to remain

in the same shop, without shifting to the corner shop in the same

premises, as it would entail huge expenditure for relocation for a short

time of one year, particularly in view of the fact that he is running a

business of sale and purchase of jewellery from the shop which

requires installing of safeguards and safety equipment for security

reasons.

15. Having regard to the aforesaid statement made by the

petitioner/tenant, who is present in Court, issue notice to the

respondent, limited only to the aforesaid extent that the

petitioner/tenant may be permitted to retain the tenanted shop,

subject matter of the eviction petition, till the date agreed upon in the

compromise, i.e., till 31.3.2011 and immediately thereafter, he would

hand over vacant peaceful possession thereof to the

respondent/landlady and shall file usual undertakings to this Court for

the said purpose.

Notice shall be served through ordinary process as also by

DASTI, returnable on 27.4.2010.

                                                       (HIMA KOHLI)
APRIL 16, 2010                                           JUDGE
mk