Gulab Singh Through Lrs. vs The Ramkola Sugar Mills Co. Ltd. & ...
2011 Latest Caselaw 3549 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                        Judgment reserved on : 19.7.2011
                         Judgment delivered on : 26.7.2011


+            CM(M).No. 818/2011 & CM No.12953/2011


GULAB SINGH THROUGH LRS.                      ...........Appellant
                 Through:            Ms.Suman Kapoor, Advocate.

                   Versus

THE RAMKOLA SUGAR MILLS CO. LTD. & ORS.
                                     ..........Respondent
                 Through: Mr.Sanjeev     Anand      and
                           Mr.Vikram Singh, Advocates.

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 appeal has impugned two orders. The first order is the

order dated 7.5.2011; the second order is the order dated

6.6.2011. Both the said orders had been passed by the ARCT.

Vide order dated 7.5.2011 the application filed by M/s Triveni

Engineering and Industries Ltd. under Section 151 of the Code of

Civil Procedure (hereinafter referred to as "the Code") to be

impleaded as a party had been allowed and amended memo of

parties was taken on record. Vide order dated 6.6.2011 the order

of the Addl. Rent Controller (ARC) dated 15.11.1985 has been set

aside. It was held that the Rent Controller has gone wrong in

holding that the misuse has been stopped by the

respondent/tenant; appeal against the order of the trial court was

allowed; time had been granted up to 21.7.2011 to hand over

vacant possession of the suit premises to landlord. These two

orders are the subject matter of this petition.

2. On advance notice learned counsel for the respondent has

put in appearance.

3. With the consent of the parties the appeal is taken up for

final disposal.

4. The eviction petition had been filed under Sections 14(1)(c)

and 14(1)(k) of the Delhi Rent Control Act (DRCA); this was on

03.10.1969; it had been filed by Ramkola Sugar Mills. Ram Kola

Sugar Mills had been amalgamated with the transfree company

namely M/s Ganga Sugar Corporation Ltd. vide order of

amalgamation which order had to take effect on 01.11.1969.

These averments had been noted by the Supreme Court in the

litigation which has been preferred by the parties before the Apex

Court. The Apex Court while disposing of the Special Leave

Petition on 03.8.2007 had noted that since Ramkola Sugar Mills

had merged with Ganga Sugar Corporation only w.e.f. 01.11.1969

and the eviction petition had been filed prior thereto the

proceedings was held to be maintainable. Matter had accordingly

been remanded back to the High Court for reviewing its order

dated 4.9.2000 vide which the High Court had held that the

eviction petition filed by Ramkola Sugar Mills was a nullity. The

High Court vide order dated 7.12.2007 reviewed its orders dated

4.9.2000 and 20.8.2004, holding the eviction petition to be

maintainable.

5. The eviction petition under Section 14(1) and 14(1)(k) of the

DRCA had been decreed by the ARC on 4.2.1976. The contention

of the landlord that the premises was being misused having been

let out for residential purpose but was being run for a restaurant

had found favour with the Rent Controller; the landlord's second

contention that the premises is being run contrary to the terms

and conditions imposed on the petitioner by the government had

also found favour with the Rent Controller; eviction order was

accordingly passed under Section 14(1)(c) of the DRCA. Ground

(k) under Section 14(1) was held proved. However, the procedure

as contained in Section 14(11) had to be adhered to by giving

notice to L&DO to ascertain the fact if the government was willing

to regularize the use of the premises. On 20.7.1976 the ARC

noted that the L & DO pursuant to a notice issued to them had in

the reply refused to regularize the use of the premises contrary to

the terms of the lease; it was asked to stop the misuse contrary to

the terms of the lease Ex.AW1/A6 within four months failing which

the tenant would be liable to be evicted.

6. The order of the ARC dated 4.2.1976 was the subject matter

of an appeal before the Rent Control Tribunal (RCT). On

06.8.1979 the Tribunal had set aside the order of the Rent

Controller under Section 14(1)(c) holding that there was no

misuse. The order qua Section 14(1)(k) was however maintained.

7. In September, 1979 the landlord preferred an execution

petition. This execution petition sought execution of the order

dated 20.7.1976. Objections were filed by the tenant; contention

being that the misuse has been stopped in March 1976 much

before the order was passed on 20.7.1976. The Rent Controller

vide order dated 31.7.1981 directed the parties to adduce

evidence as to whether the condition imposed in terms of Section

14(11) of the DRCA which was required to be complied with in

four months has been complied with or not. Order of 20.7.1976

stood modified to this extent. This was affirmed in appeal vide

order of the ARCT on 26.11.1981. On 15.11.1985 the petition

filed by the legal heirs of the deceased Gulab Singh had been

adjudicated and on the basis of the evidence led before the

executing court the objections filed by the legal heirs of the tenant

had been allowed; execution petition was dismissed. On 1.5.1986

the Rent Control Tribunal set aside the order of the ARC whereby

the objection of the tenant/LRs have been allowed. The Tribunal

was of the view that there was no evidence to the effect that the

misuse has been stopped. Against the order dated 01.5.1986 an

appeal was filed before the High Court; this appeal was allowed

on 4.9.2000. This appeal was allowed on the premise that the

eviction petition initiated by M/s Ram Kola Sugar Mills which by a

non-entity since it had amalgamated with M/s Ganga Sugar Mills

Corporation it was accordingly dismissed. These proceedings

were assailed before the Supreme Court and in view of the new

factual scenario which had emerged (as noted supra) it was noted

that the eviction petition had been preferred by Ram Kola Sugar

Mills prior to its amalgamation with M/s Ganga Sugar Mills

Corporation and as such the eviction petition was filed by a

competent person. The order of the High Court dated 4.9.2000

was subsequently reviewed by an order dated 7.12.2007. The

order dated 1.5.1986 passed by the Tribunal was set aside.

Matter was remanded back to the Tribunal to decide it afresh.

8. This appeal was finally decided by the impugned judgment

i.e. the judgment dated 6.6.2011. Prior to the disposal of the

appeal an application filed by M/s Triveni Industries Pvt. Ltd. to

be impleaded in place of Ram Kola Sugar Mills had been allowed

on 07.5.2011 and the amended memo of parties had also been

taken on record.

9. Vide impugned judgment (disposing of the appeal) the order

of the ARC was set aside; the impugned judgment has noted that

the lease deed which was executed between the landlord and the

L.&D.O clearly postulates that lessee/landlord will neither carry

on or permit to be carried on, on the said premises any business,

trade or manfacture or permit the said premises to be used for

any purpose otherwise than as private lock up garages/ for private

motor car. The premises although had been given by the landlord

to Gulab Singh for a residential purpose yet it could not have

breached the terms of the lease deed. The contention of the

tenant that he had stopped the misuser of the premises since

March 1975 did not find favour with the Tribunal and after

examination of the evidence which had been led before the

executing court it was of the view that the misuse of the premises

had not been stopped; further the order of eviction under Section

14(1)(k) did not suffer from any infirmity; order dated 20.7.1976

had also attained a finality vide which the tenant had been

directed to stop the misuse other than that allowed in terms of the

lease deed failing which the tenant was liable to be evicted.

Eviction order was accordingly passed.

10. In this background the respective contentions of the parties

has to be appreciated.

11. On behalf the appellant it has been vehemently argued that

even assuming that the eviction petition had been filed by a

competent person i.e. by Ram Kola Sugar Mills, the execution

petition and the appeal preferred thereafter by Ram Kola Sugar

Mills was incompetent; these proceedings were a nullity as

admittedly even as per the case of the respondent M/s Ram Kola

Sugar Mills was amalgamated and merged with M/s Ganga Sugar

Mills Corporation w.e.f. 1.11.1969 which had then merged with

M/s Gangeshwar Ltd. and thereafter M/s Triveni Engineering and

Industries. The contention is that the order allowing the

application of M/s Triveni Engineering and Industries to be

substituted in place of Ram Kola Sugar Mills at such a belated

stage (vide order dated 17.5.2011) was clearly an illegality. The

subsequent proceedings after filing of the eviction petition i.e. the

execution petition and the appeal were also a nullity. For this

proposition reliance has been placed upon AIR 1991 SC 70

Sarswarti Industrial Syndicate Ltd. Vs. Commissioner of Income

Tax . The second contention raised by the learned counsel for the

petitioner is that the RCT could not have re-appreciated the

evidence which had been assessed by the Rent Controller. The

order of the Rent Controller suffers from no infirmity and the

Tribunal reviewing this evidence has committed an illegality.

Reliance has been placed upon 136 (2007) DLT 219 Shyam

Sunder Dania & Anr. Vs. J.D.Kapoor to substantiate this

submission where the reasoning of the ARC is based on the

appreciation of evidence and which has not raised any question of

law appeal should not have been entertained.

12. Arguments have been rebutted.

13. Record has been perused.

14. In (1985) 1 SCC 270 Lakshmi Narayan Guin & Anr. Vs.

Niranjan Modak , the Apex court had reiterated that a decree

which is in appeal; is considered as a continuation of the suit and

where the appellate decree affirms, modifies or reverse the decree

on merits, the decree of the trial court merges with the appellate

court decree and it is the appellate decree which rules. This has

again been reiterated in (2008) 8 SCC 505 D.Purushotama Reddy

Vs. K.Sateesh; wherein it was reiterated that an appeal is a

continuation of the suit.

15. The position that emerges is thus as follows:

The High Court while reviewing its earlier order dated

4.9.2000, vide order dated 7.12.2007 has returned a

finding that since Ramkola Sugar Mills had merged with

M/s Ganga Sugar Mills Corporation only w.e.f. 1.11.1969

and the eviction petition having been filed prior in time the

proceedings were held to be maintainable. It is thus settled

that the eviction petition was filed by a competent person;

the subsequent appeal and execution of the decree passed

in the eviction petition were mere continuations of the

eviction petition; in these circumstances, the argument of

the learned counsel for the petitioner that the appeal and

the execution petition were being continued by an

incompetent person has no merit. The order of the Tribunal

dated 07.5.2011 allowing the impleadment of M/s Triveni

Engineering and Industries Ltd. in lieu of Ramkola Sugar

Mills thus suffers from no infirmity.

16. Record also shows that Ramkola Sugar Mills had

amalgamated and merged with M/s Ganga Sugar Corporation Ltd.

which order was to take effect w.e.f. 01.11.1969; eviction petition

had been filed on 03.10.1969 i.e. prior thereto. It is also relevant

to state that at no point of time this issue about the legality or the

status of the Ramkola Sugar Mills to contest the appeal had been

raised before the courts below; this was raised for the first time

in the objections filed before executing court. It is also not the

case of the judgment debtor that he was unaware of the fact. This

is relevant in view of the fact that the tenant Gulab Singh had

moved an application on 15.7.1971 praying that since the

premises had been sold by Ramkola Sugar Mills in favaour of M/s

Ganga Sugar Mills Corporation; Ramkola Sugar Mills had ceased

to have any interest in the property. Record further revealed that

on 2.9.1971 application order under Order 22 Rule 10 of the Code

had been filed by M/s Ganga Sugar Mills Corporation contending

that Ramkola Sugar Mills had merged with M/s Ganga Sugar Mills

Corporation and M/s Ganga Sugar Mills Corporation has a right to

continue with the proceedings. This application was allowed on

2.3.1972 with a direction to file the amended memo of parties. It

appears that the amended memo of parties was not filed and that

is why in the judgment dated 4.2.1976 (passed by the ARC) the

parties continued to be described as Ramkola Sugar Mills Vs.

Gulab Singh. On 3.4.1978 M/s Ganga Sugar Mills Corporation

had changed its name to M/s Gangeshwar Ltd. and thereafter to

M/s Triveni Engineering and Industries Ltd. The certificate of

incorporation dated 31.3.2000 is also on record. It was in this

factual background which is borne out from the record that the

order dated 07.5.2011 was passed allowing M/s Triveni

Engineering and Industries Ltd. to be impleaded as the appellant.

This order suffers from no infirmity.

17. Record has revealed that an eviction petition has been filed

by the landlord under Section 14(1)(c) and 14(1)(k) of the DRCA.

On both counts a decree had been passed on 4.2.1976. On

20.7.1976 the ARC granted four months time to the judgment

debtor to stop the misuse or else face eviction. This was pursuant

to the reply which had been tendered by the L & DO under

Section 14(11) of the DRCA wherein the L & DO refused to

regularize the misuser of the premises. The Tribunal had set

aside the order under Section 14(1)(c) but the order under Section

14(1)(k) stood affirmed. However the order under Section

14(1)(k) could not take effect as the procedure contained in

Section 14(11) of the DRCA was to be complied with. The

Tribunal vide its order dated 6.8.1979 had noted that the

ingredients of Section 14(1)(k) and the procedure contained in

Section 14(11) has to be followed. In September 1979 the

execution petition had been filed by the decree holder; objections

have been filed by the judgment debtor on 25.4.1980. Contention

being that the alleged misuse i.e. using the premises as restaurant

since March 1976 has since stopped and this is prior in time to the

order dated 20.7.1976. The ARC vide its order dated 03.7.1981

directed the parties to lead evidence which order was affirmed in

appeal by the Tribunal on 26.11.1981. The evidence was led

before the executing court. JDW-1 was S.N.Gupta, an LDC from

the Health Department, MCD; had brought the summoned record;

as per his deposition Gulab Singh had been given a licence for

selling tea and bakery product; licence was valid up to 1975-76; it

has not been renewed thereafter; there was now no tea shop at

the spot. In his cross-examination he has reiterated that the fact

that the licence has not been renewed after 1975-76 and how no

tea shop exists there. JDW-2 was the son of the deceased Gulab

Singh who has also reiterated that the last licence for running a

tea shop was taken in the year 1975-76 and thereafter the licence

of tea was closed; it was being run as a residential unit where his

family was residing. In his cross-examination he has admitted

that on 27.9.1976 an order was passed to stop the misuse of the

premises; he further deposed that tea shop had already stood

closed 2 to 3 year prior to the death of his father. His father had

expired on 12.2.1979. DHW-1 on behalf of the decree holder had

deposed that on 20.7.1976 notice under section 14(11) of the

DRCA had been issued to the L& DO pursuant to which four

months time had been granted to the judgment debtor/tenant to

remove the breaches and stop misuse; he, however, continued

with the misuser. In his cross-examination he has stated that

officers of the decree holder company had gone to see if the

misuse had been stopped or not; the misuse continued; however,

report in writing was not submitted by them.

18. This was the sum total of the evidence which had been led

before the executing court pursuant to which the executing court

vide its order dated 15.11.1985 had allowed the objections. This

order had noted that in the grounds of appeal (dated 15.5.1976) in

para 16 the JD had stated that he had stopped the misuser of the

premises; moreover admittedly after 1975-76 the judgment debtor

had not applied for the renewal of the licence; the restaurant

could not have been run without a licence. The statement of CW-2

wherein he had deposed that after 1975-76 he had stopped using

the premises had been relied upon; objections were allowed;

execution petition had been dismissed.

19. The impugned order has reversed this finding.

20. Before dealing with this impugned order relevant would it

be to extract the provision of Section 14(1)(k) of the DRCA; it

reads as follows:

"(k) that the tenant has, notwithstanding previous notice, used or dealt with the premises in a manner contrary to any condition imposed on the landlord by the Government or the Delhi Development Authority or the Municipal Corporation of Delhi while giving him a lease of the land on which the premises are situate;"

21. Section 14(11) contains the procedure which has to be

followed before an order under Section 14(1)(k) of the DRC can be

implemented. It clearly postulates that an order for recovery of

possession shall not be made if the tenant within such time as

specified by the Controller, complies with the condition imposed

on the landlord by any of the authorities referred to in that clause

or pays to that authority such amount by way of compensation as

the Controller may direct. In the instant case it is not in dispute

that four months time had been granted in terms of the order of

the Rent Controller dated 20.7.1976 to the tenant to stop the

misuse or else eviction order would follow. On this count the

testimony of the witnesses noted supra are relevant. JDW-2 was

the son of deceased tenant. The original tenant Gulab Singh had

expired on 12.2.1979; after 1975-76 no licence had been obtained;

admittedly prior thereto business of running a tea restaurant was

being run there. In his cross-examination he had admitted that

tea shop was closed 2 to 3 years prior to the death of his father

meaning thereby that it was closed some time in 1975-76. JDW-1

was a summoned witness being an LDC from the Health

Department of the MCD who had deposed as per the record that

no licence for running tea shop had been applied for by Gubal

Singh after 1975-76. Testimony of JDW-1 establishes that no

licence had been obtained for running the tea shop after 1975-76.

In the objections petition preferred on 25.4.1980 (before the

executing court) the objector had stated that the misuse has

stopped in the premises since March 1975, much prior to the

passing of the order of eviction. Per contra the evidence of

DHW-1 was to the effect that on 20.7.1976 notice under Section

14(11) of the DRCA had been issued to the L & DO and even

thereafter misuser had not been stopped. In his cross-

examination this witness had admitted that although persons from

his company had visited the premises several times to see whether

the misuse had been stopped or not; they had noted that misuse is

continuing but no report to the said effect was filed. It has also

come on record that no licence had been applied to by the

objector after 1975-76 for the running of the tea shop although

admittedly prior thereto licence had been obtained by him. This

entire evidence had been noted and looked by the ARC at the time

when the objections of the objector were allowed in terms of the

order dated 18.11.1985.

22. An appeal against the order of the Rent Controller is

maintainable under Section 38 of the DRCA only on a question of

law. In the judgment of Shyam Sunder Dania (supra) a Bench of

this Court had noted that where the reasoning of the ARC is based

on the appreciation of evidence and no question of law has been

raised the Tribunal should not interfere with the finding of the

Rent Controller. In the instant case as well it is not as if the order

of the Rent Controller is not based on a sound reasoning; it was

after considering the entire evidence led before it; the Tribunal

has interfered on mere conjectures; the appeal was not founded

on a question of law. The ARC had in fact based his reasoning on

an appreciation of the evidence and had held that the execution

stood satisfied as the misuse has been stopped. The appeal before

the Tribunal not having raised any question of law the Tribunal

has committed an illegality in interfering on mere surmises. The

Tribunal has based its finding on Clause 7 of the lease deed which

was a lease executed between the superior lessor i.e. the L & DO

and the landlord(respondent) failing to note that the evidence led

before the executing court had established that the misuser by the

tenant i.e. running of the tea shop stood closed after 1975-76 i.e.

prior to the passing of the eviction order and definitely within the

period of four months as contemplated in terms of the order dated

20.7.1976. The extract from the cross-examination of JDW-2

reproduced in para 29 and 30 of the impugned order shows the

blatant misconstruction by the Tribunal of the evidence recorded

before the ARC which has to be read in its entirety and no single

line can be picked up from here and there to impute intentions

which are otherwise not noted in the entirety of the evidence. The

order dated 06.6.2011 suffers from a patent illegality. It is liable

to be set aside. It is accordingly set aside. The order of the ARC

dated 15.11.1985 allowing the objections of the objector is

restored.

23. Petition is allowed. Execution petition is dismissed. File be

consigned to record room.

INDERMEET KAUR, J.

JULY 26, 2011 nandan