Delhi High Court

Kamal Malhotra & Ors. vs Mahender Singh on 8 September, 2010

Author: Indermeet Kaur

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                     Judgment Reserved on: 06th September, 2010
%                   Judgment Delivered on: 08th September, 2010

+                        RSA No.113/1989

KAMAL MALHOTRA & ORS.                            ............Appellants
                 Through:             Mr.A.K.Jain, Advocate.

                   Versus

MAHENDER SINGH                                  ..........Respondent
                         Through:    Ms.Kiran Dharam, Advocate for
                                     Mr.K.R.Gupta, Advocate.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

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

  3. Whether the judgment should be reported in the Digest?
                                                       Yes
INDERMEET KAUR, J.

1. This second appeal has impugned the judgment dated

2.9.1989 which had endorsed the finding of the trial judge dated

23.7.1987 thereby dismissing the suit.

2. The appellant before this court is the plaintiff. The plaintiff is

stated to be the owner/landlord of premises no.63, Southern side.

G.B.Road; shop no.5446 had been let out to the defendant.

Defendant had threatened that he would sub let, assign or

otherwise part with the possession of shop in favour of a third

person against a heavy premium. He would not permit the plaintiff

to reoccupy the suit property. Accordingly, the plaintiff had filed

the present suit seeking a decree of permanent injunction

restraining the tenant from sub-letting, assigning or otherwise

parting with the aforesaid suit property.

3. The trial judge framed four issues. While deciding issue no.1

it was held that the suit is not maintainable. Reliance was placed

upon the provisions of Section 108 (j) of the Transfer of Property

Act.

4. The first appellate court vide its judgment and decree dated

2.9.1989 endorsed the finding of the trial judge but for different

reasons. The contention before the first appellate court was

whether a suit for permanent injunction by a landlord against the

tenant restraining him from sub-letting or parting with the suit

premises is maintainable or not. This contention was answered

by placing reliance upon a judgment of the Supreme Court

reported in AIR 1988 SC 752 Raja Ram Kumar Bhargava (Dead) by

Lrs. vs. Union of India. The relevant extract relied upon in the

impugned judgment is reproduced as under:

"Generally speaking, the broad guiding considerations for determining whether Civil Court jurisdiction is excluded are that wherever a right, not pre-existing in common law, is created by a statute and that statute itself provided a machinery for the enforcement of the right, both the right and the remedy having been created uno flatu and a finality is intended to the result of the statutory proceedings, then, even in the absence of an exclusionary provision the Civil Courts jurisdiction is impliedly barred. If however, a right pre-

existing in common law is recognized by the statute and a new statutory remedy for its enforcement provided, without expressly excluding the Civil Court's jurisdiction, then both the common law and the statutory remedies might become concurrent remedies might become concurrent remedies leaving open an element of election to the persons of inherence."

Coming to the facts of the present case, before coming into force of the Delhi Rent Control Act in the year 1958, there was no pre-existing right available to a landlord/lessor, in Common law, restraining a tenant/lessee from subletting the premises, and it was only in the year 1958 when the Delhi Rent Control Act, 1958, came into force that a machinery was provided for the enforcement of right and both the right and the remedy were created by way of inserting Section 14 (1) (b) of the Delhi Rent Control Act, And infality is attached to the proceedings done under the Delhi Rent Control Act. Therefore, even in the absence of a exclusionary provision, the civil court's jurisdiction is impliedly barred. Before the coming

into force of the Delhi Rent Control Act in the year 1958, the tenant-lessee had every right to sublet the premises in terms of Section 108 (j) of the Transfer of Property Act, and Delhi Rent Control Act, 1958, had not recognised any pre-existing right of the landlord in common law and in fact both the right and the remedy in case of subletting have been created uno flatu by the provisions of Section 14 (1) (b) of the Delhi Rent Control Act, 1958. Applying the aforesaid principle laid down by the Hon'ble Supreme Court, I am of the considered opinion that a landlord has no right to seek injunction against a tenant/lessee restraining him from subletting or parting with the possession of the suit property as in such matters jurisdiction of the civil courts is impliedly barred."

5. The appeal was dismissed.

6. This is a second appeal. On 28.9.1989 the appeal was

admitted and the following substantial question of law was

formulated which inter alia reads as follows:

"Whether a suit by a landlord to restrain a tenant from sub- letting, assigning or parting with possession of the demised premises is barred by Section 50 of the Delhi Rent Control Act, 1958?"

7. Learned counsel for the appellant has urged that the

impugned judgment is faulty in as much as reliance upon the case

of Raja Ram Kumar Bhargava (supra) was misplaced. It is

submitted that in AIR 1981 Delhi 77 Parmeshwari Das Khanna vs.

Bhola Nath Parihar in a similar situation injunction had been

granted in favour of the landlord against the tenant prohibiting him

from making material alterations in the property; provisions of

Section 14 (1)(j) of the Delhi Rent Control Act had been examined.

It is submitted that the said judgment applies squarely to the facts

of the instant case. Reliance has also been placed upon 57 (1995)

DLT 648 (DB) Phiroz Adi Vandrevala vs. Major Shanti Kumar

Sharma a division bench judgment of this court wherein it was held

that a statutory tenant can move a civil court for grant of

permanent injunction to protect his possession; suit is maintainable

under Section 9 of the CPC. Reliance has also been placed upon

1966 DLT Vol.II 219 Om Parkash Mongia vs. Lekh Raj Aggarwal to

support his submission that a suit for recovery of arrears of rent is

maintainable although an alternate remedy under Section 14 (1) (a)

of the Delhi Rent Control Act is available. On the same analogy

the present suit is also maintainable.

8. The counsel for the respondent states that in spite of

intimation she has no instructions from her client.

9. The present suit was a suit for injunction. Plaintiff was

stated to be the owner of the suit property. Defendant was his

tenant. The prayer of the plaintiff was that the defendant should

be restrained from sub-letting, assigning or otherwise parting with

the possession of the suit property to a third party. Defendant in

his written statement had denied that he had imparted any threat.

It is however not in dispute that he was the tenant of the plaintiff.

10. The Delhi Rent Control Act 1958 has been enacted to provide

for the control of rents and evictions in certain areas in the Union

Territory of Delhi. The preamble of the Act inter alia reads as

follows:

"An Act to provide for the control of rents and evictions and of rates of hotels and lodging houses, and for the lease of vacant premises to Government, in certain areas in the Union territory of Delhi."

11. Chapter III of the act deals with the control of eviction of

tenants. Under Section 14 (1) (b) of the said Act the Controller

may make an order for the recovery of possession of the premises

where the tenant has after the 9th day of June, 1952 sublet,

assigned or otherwise parted with the possession of the whole or

any part of the premises without obtaining the consent in writing of

the landlord. It is clear that this provision is available to the

landlord only after the act of subletting, assigning or otherwise

parting with the possession of the property without the consent of

the landlord has been concluded. In the intervening period as is so

in the instant case i.e. when there was only a threat of sub-letting

of disputed property there is no provision in the Delhi Rent Control

Act which could have come to the rescue of the landlord. Only

remedy available to such a landlord is a suit for injunction.

12. An injunction suit is a discretionary relief which can be

granted by a court by way of a judicial process if the opposite party

has invaded or threatened to invade the legal or equitable right of

the other. An injunction may be mandatory or prohibitory; object of

such an injunction being generally protective and preventive. An

injunction can be granted to a plaintiff/landlord to prevent the

breach of an obligation existing in his favour under the tenancy

when the defendant/tenant has threatened to invade this right of

the plaintiff by using the demised premises in a manner not

consistent with the covenants of the lease or the terms of tenancy

between the parties. This remedy which is available to the

landlord is distinct and different from a remedy which would be

available under Section 14 (1) (b) of the Delhi Rent Control Act

which is a contingency which would arise only when the actual act

of subletting or parting with the possession of the disputed

property has been completed by the tenant in favour of a sub-

tenant. Remedy available to such a landlord is adequately

envisaged by filing a suit for injunction. Both the courts below

have erred in holding that such a suit is not maintainable.

13. In Parmeshwari Das Khanna (supra) on the maintainability of

a suit for permanent injunction by the landlord against the tenant

when the tenant was proposing material alterations and changes in

the tenanted premises, the bench of this court had held that such a

suit is maintainable. In this context the relevant extract and

finding of the court read as follows:

"The cause of action envisaged by Section 14 (1) (j) of the Delhi Rent Control Act (59 of 1958), is substantial damage to the demised premises and every act of waste or structural alteration will not entitle the landlord to obtain an order of eviction. In other words, the provisions of Delhi Rent Control Act are more stringent in this respect and the landlord need not resort to proceedings for eviction of the tenant if another suitable remedy under the general law is available to him.

... ..... .....

A tenant is under a contractual obligation not to indulge in any act of waste or damage to the demised premises during the term of tenancy and he is bound to restore the premises in sound condition after getting it duly repaired at the time of vacating it. The tenant cannot make structural additions and alterations without the consent of the landlord and the alterations that are not authorised would amount to breach of the implied covenant mentioned in cls.(m) and (o) of Section 108 of the T.P. Act. The impairment of a building has to be examined from the point of view of owner and not from the point of view of the tenant and an alteration of structural nature by the tenant would certainly entitle the landlord to ask for relief by way of injunction of appropriate nature."

14. The judgment relied upon by the first appellant court to non-

suit the plaintiff would not be applicable. The subject matter of

those proceedings were in the context of direct taxation under a

fiscal statute i.e. Income Tax Act. The question before the court

was that an order passed under the Income Tax Act of 1961 is a

complete assessment within Section 297 (2) (i) and whether the

claim for interest on refund under the earlier act i.e. under the

1922 Act survived or not. Observations made in this context

dealing with the ouster of the jurisdiction a civil court while

interpreting the provisions of the Income Tax Act would not apply

to the instant situation. The first appellate court has erred in non-

suiting the plaintiff by relying upon this judgment.

15. There is also no bar to such a suit under Section 50 of the

Delhi Rent Control Act. Section 50 of the said Act reads as follows:

50. Jurisdiction of civil courts barred in respect of certain matters - (1) Save a otherwise expressly provided in this Act, no civil court shall entertain any suit or proceeding in so far as it relates to the fixation of standard rent in relation to any premises to which this Act applies or to eviction of any tenant therefrom or to any other matter which the Controller is empowered by or under this Act to decide, and no injunction in respect of any action taken or to be taken by the Controller under this Act shall be granted by any civil court or other authority.

(2) If, immediately before the commencement of this Act, there is any suit or proceeding pending in any civil court for the eviction of any tenant from any premises to which this Act applies and the construction of which has been completed after the 1st day of June, 19951, but before the 9th day of June, 1955, such suit or proceeding shall, on such commencement , abate.

(3) If, in pursuance of any decree or order made by a court, any tenant has been evicted after the 16th day of August, 1958, from any premises to which this Act applies and the construction of which has been completed after the 1st day of June, 1951, but before the 9th day of June, 1955, then, notwithstanding anything contained in any other law, the Controller may, on an application made to him in this behalf by such evicted tenant within six months from the date of eviction, direct the landlord to put the tenant in possession of the premises or to pay him such compensation as the Controller thinks fit.

(4) Nothing in sub-section (1) shall be construed as preventing a civil court from entertaining any suit or proceeding for the decision of any question of title to any premises to which this Act applies or any question as to the person or persons who are entitled to receive the rent of such premises.

16. It clearly recites the situations under which a civil suit is

barred. This bar is in respect of certain matters which are within

the powers of the Rent Controller i.e. fixation of standard rent and

eviction and any other matter which the Controller is empowered

by or under this Act to decide. It does not envisage a situation as in

the present case i.e. when there is a threat by the tenant to the

landlord of parting with the possession of the disputed property in

favour of a third party. This case is not covered by the jurisdiction

of the Rent Controller; in such a case the only remedy available to

the landlord is to file a suit for injunction.

17. The result of the aforesaid discussion is that such a suit i.e. a

suit for injunction would be maintainable by a landlord against a