Delhi High Court
Kulwant Rai Jain vs Uma Sahai Memorial Trust on 22 August, 2012
Author: M. L. Mehta
* THE HIGH COURT OF DELHI AT NEW DELHI
+ CM (M) 934/2012
Date of Decision: 22.08.2012
KULWANT RAI JAIN ...... Petitioner
Through: Mr. Sandeep Sethi, Sr.Adv. with
Mr.Sushant Kumar, Adv.
Versus
UMA SAHAI MEMORIAL TRUST ...... Respondent
Through:
CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA
M.L. MEHTA, J. (Oral)
1. This petition under Article 227 of the Constitution impugns the
order dated 11.5.2012 passed by Senior Civil Judge-cum-Rent
Controller (South), New Delhi whereby the objections filed by the
petitioner under Order 21 Rule 35 CPC were dismissed.
2. The respondent Uma Sahai Memorial Trust filed a petition for
eviction under Section 22 of the Delhi Rent Control Act (for short the
'Act') against M/s. Jain Malleables seeking its eviction from the
tenanted premises C1-A (Old No. B-11/A), Maharani Bagh, New Delhi.
The eviction petition was allowed vide the judgment dated 21.4.2003 of
the Addl. Rent Controller. The tenant through its proprietor K.R.Jain,
the petitioner herein, filed an appeal against the said judgment. In the
appeal, parties arrived at a settlement vide document Ex.C1. In terms
thereof, the ground and second floor of the tenanted premises were
surrendered and, as agreed, a lease was to be executed for first floor,
garage, servant quarter with common passage to first floor, by the
landlord in favour of the tenant for the period of five years commencing
from 01.04.2007 expiring on 31.03.2012. Consequently, the appeal was
disposed of as compromised in terms of the settlement and undertakings
given by the parties as stipulated in Ex.C1.
3. The petitioner/tenant having failed to deliver possession on the
expiry of five years, the landlord had to take execution of the eviction
order. The petitioner filed objections alleging that the compromise
arrived at between the parties, did not amount to decree of the court and
the order which was sought to be executed, was not executable. It was
also alleged that he never agreed or undertook to vacate the first floor of
the premises on the expiry of five years. It was further alleged that the
compromise deed created fresh lease in his favour in respect of the first
floor and thus, the eviction order was not executable in respect thereof.
4. The objections were dismissed by the Trial Judge reasoning as
under:
"It must be borne in mind that this eviction order was not set
aside in appeal and the appeal was disposed of as
compromised in terms of settlement of parties. However, the
appeal on merit was dismissed. Therefore, the only
modification that was made in the order dt. 21.04.03 in the
appeal was that the Judgment Debtor was permitted to retain
the possession of first floor of the premises for another five
years. Otherwise, the eviction order dt. 21.04.03 was upheld in
the appeal by the Ld. Addl. Rent Control Tribunal. Hence, it does
not lie in the mouth of Judgment Debtor that after the
compromise decree, a fresh lease has been created in favour of
Judgment Debtor and the compromise decree is not able of
being executable".
5. The aforesaid order is under challenge in the instant petition by
the petitioner/objector.
6. I have heard learned senior counsel for the petitioner and perused
the record. The sum and substance of the averments and the submissions
made by the learned senior counsel are that the eviction order was not
executable qua the first floor of the premises, which was possessed by
the petitioner by virtue of a fresh lease. It was his submission that the
petitioner could not be evicted from the first floor premises as he was
tenant therein in terms of the lease deed for the period of five years and
he could only be evicted by a separate proceeding by the landlord. The
submission of the learned senior counsel apparently looks impressive,
but in fact, is not tenable being without any merit. It is noted that in the
appeal that was filed by the petitioner against the eviction order, the
eviction order was not disturbed on merits. It was in consequence of
that eviction order that instead of suffering execution thereof, the
petitioner compromised and surrendered two floors of the tenanted
premises. With regard to the first floor, the settlement was arrived at
that the petitioner would retain the premises for another five years with
effect from 01.04.2007 to uptill 31.03.2012. It was irrelevant if it was to
be by way of oral statements or by way of a lease deed. In both the way,
the effect was to permit the petitioner to retain the first floor premises
for further period of five years. It was thus, nothing but abeyance of
execution of eviction order in respect of the first floor premises till
31.03.2012. There is nothing on record, nor anything could be
demonstrated by the petitioner that the intention was to create fresh
tenancy in respect of the first floor premises by the respondent/landlord
in favour of the petitioner, in deference to the eviction order in respect
of the entire premises. The petitioner not only failed to deliver the
possession on the expiry of five years, but has further delivered its
possession to C.P.Sharma, Advocate, who was found to be present in the
said first floor premises. The occupation of Mr.C.P.Sharma, Advocate
on the first floor was confirmed by the Local Commissioner appointed
in another connected execution petition and also from the fact of
Mr.C.P.Sharma, Advocate also having filed separate objections,
claiming himself to be in possession thereof.
7. The conduct of the petitioner is further seen from the fact that
despite having not pressed the appeal on merits in view of the
compromise and to remain bound by terms of compromise, he did not
vacate the ground and the second floor also. So much so, the execution
had to be filed by the landlord for taking possession of these floors as
well. This time the father and the brothers of the petitioner filed
objections and which took the court about two years to dismiss the
same. The matter did not end here. They went in appeals against that
order and which had to be dismissed by the Appellate Court on
27.08.2011. It was during the tenancy of those appeals that those
objectors vide their separate application dated 7.9.2009 intimated the
Appellate Tribunal about the first floor being in occupation of
C.P.Sharma, Adv. All this shows the conduct of the petitioner in having
utterly abused the process of law.
8. Now, at this stage, learned senior counsel for the petitioner sought
for some time to vacate the first floor premises. However, neither the
petitioner nor Mr.C.P.Sharma, Adv. were present. Even otherwise,
having regard to the entire factual matrix, there was no case made out by
the petitioner even for issue of notice to the respondent on the point of
grant of time as well. The petition being without any merit is hereby
dismissed in limine.
M.L. MEHTA, J.
AUGUST 22, 2012/akb
