Suri Properties vs Om Prakash Bros
2012 Latest Caselaw 6717 Del

*      THE HIGH COURT OF DELHI AT NEW DELHI

+                         C.M. (M) 301/2012

                                          Date of Decision: 23.11.2012

SURI PROPERTIES                                   .......Petitioner
                       Through:         Mr.Vipin Nandwani, Advocate.

                                 Versus

OM PRAKASH BROS                                    ......Respondent
              Through:                 Mr.Ankit Jain, Advocate.



CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA

M.L. MEHTA, J. (Oral)

1. This is a petition under Article 227 of the Constitution of India, challenging the order dated 28.11.2011 passed by the Ld. ARCT, New Delhi, whereby the appeal against the order dated 13.09.2011 was dismissed and the application for restitution of the suit premises filed by the respondent/tenant under Section 144 of the Civil Procedure Code (for short "the Code"), was allowed.

2. The facts leading to the passing of the impugned order are as follows. The respondent is a tenant in respect of premises bearing Qrt No. 7, Block C, Regal Building Annexe, Behind Regal Cinema, New Delhi (hereinafter referred to as the "suit premises"). The suit property

was originally owned by Sardar Bhagwant Singh and others. They had let the property to the respondents vide a registered lease deed dated 18.01.1985 under which the tenants were allowed to sub-let the suit premises. The same was then purchased by the petitioner around the year 1985 or 1986. The respondent had sub-let the premises to M/s Space Tours and Travels in 1987. On coming to know about this sub- letting, the petitioner filed an eviction petitioner u/s 14(1) (b) of the Delhi Rent Control Act (for short "the Act") on 25.10.1994, which was eventually dismissed for non-prosecution. The respondent, on the apprehension that the sub-tenant M/s Space Tours and Travels would part with possession of the suit premises, filed a civil suit against them in 1995 which was decreed by this Court. Subsequently on 19.10.2007, the petitioner filed another petition u/S 14(1) (d) of the Act against the respondent. An ex-parte eviction order was passed and the possession of the suit premises was handed over to the petitioner. After obtaining possession, the petitioner let out the suit premises to Sh. Hardev Singh on 12.02.2009 for a period of three years which was to expire on 31.01.2012. The respondent on coming to know of the ex parte decree filed an application u/O 9 Rule 13 of the Code. It was allowed vide order dated 09.04.2012 and since the same was not challenged by the petitioner, it became final. After this, the respondent moved an application u/S 144 of the Code which was allowed by an order dated 13.09.2011. The petitioner challenged this order u/S 38 of the Act and the same was dismissed by the Ld. ARCT. This order is under challenge in this petition.

3. Before proceeding further, it is important to note that the jurisdiction of this court u/A 227 of the Constitution is supervisory in nature. The power of the court is not like that of an appeal and the court has to restrict itself and see as to whether the subordinate courts have acted within the bounds of their jurisdiction and also whether any grave injustice would be caused to any one of the parties unless this court interferes. Keeping the above principle of law in mind, I have heard the Ld. Counsels for the parties and have perused the documents on record.

4. The contention of the petitioner before me and the Ld. ARCT was that as the respondent was not in actual physical possession of the premises in dispute, therefore Section 144 of the Code does not apply. He pointed out that had the sub tenant, M/s Space Tours and Travels moved the same application, then the matter would have been different. The Ld. Counsel for the petitioner submitted that the judgement in "Sadashiv Shyama Sawant vs. Anita Anant Sawant, (2010) 3 SCC 385", was different in facts and was thus not applicable to this case and was wrongly relied upon by the RC. The Ld. ARCT dismissed the said contention stating that since the relationship between the respondent and the sub-tenant, M/s Space Tours and Travels was that of landlord tenant, which was established by the fact that the respondent filed a suit against the sub-tenants in 1995 and also an eviction petition u/S 14(1) (a) of the Act in 2008, the principle of law that is derived from the facts of the case are applicable.

5. It would be relevant at this point to look into the law laid down by the Hon'ble Supreme Court in the case of "Sadashiv Shyama Sawant vs. Anita Anant Sawant, (supra)". The said case elucidated the word "possession" in bringing about the concept of actual physical possession and legal possession. The judgment referred to the definition of "possession" that was given in Halsbury's Laws of England.

6. Applying this definition to the case before it, the Supreme Court came to the conclusion that:-

"18....... A person is said to have been dispossessed when he has been deprived of his possession; such deprivation may be of actual possession or legal possession. Possession in law follows right to possession. The right to possession, though distinct from possession, is treated as equivalent to possession itself for certain purposes.........................

"21. A landlord by letting out the property to a tenant does not lose possession as he continues to retain the legal possession although actual possession, user and control of that property is with the tenant. By retaining legal possession or in any case constructive possession, the landlord also retains all his legal remedies. As a matter of law, the dispossession of tenant by a third party is dispossession of the landlord....... If a tenant is thrown out forcibly from the tenanted premises by a trespasser, the landlord has implied right of entry in order to recover possession (for himself and his tenant). Similarly, the expression "any person claiming through him" would bring within its fold the landlord as he continues in legal possession over the tenanted property through his tenant.

"22...... A landlord when he lets out his property to the tenant is not deprived of his possession in the property in law. What is

altered is mode in which the landlord held his possession in the property inasmuch as the tenant comes into physical possession while the landlord retains possession through his tenant."

7. There is evidently the existence of a relationship of landlord tenant between the respondent and the sub-tenant, M/s Space Tours and Travels. Having said which, the landlord also has the right to recover possession of the suit premises as he retains legal possession of the same. Thus the contention of the petitioner that the respondent was not in actual physical possession of the suit premises, has no ground and was rightly dismissed by both the lower courts.

8. It was sought to be contended by the learned counsel for the petitioner that the general subletting was not permissible and that to get out of the mischief of Section 14 (1) (b), the written consent of the landlord for specific subletting was required to be obtained by the tenant. In other words, the submission was that the respondent/tenant was not permitted to sublet the suit premises to M/s. Space Tours and Travels in the absence of there being specific written consent of the landlord in this regard. In this regard, the reliance was placed on the decision of Bajaj Auto Ltd. Vs. Behari Lal Kohli, 1989 AIR 1806. This contention of the learned counsel for the petitioner has been noted only for rejection inasmuch as no such plea was raised either before the court of ARC or that of the ARCT and such a plea could not be allowed to be raised for the first time in the present petition under Article 227 of the Constitution. In any case, the facts of the case of Bajaj Auto Ltd. (supra) are entirely distinguishable from the instant

case. The reading of the relevant clauses in the lease deed dated 18.1.1985 as a whole would evidently show that the landlord had given the rights of open subletting to the respondent/tenant without seeking any consent for a specific subletting. By stipulating such clauses, the landlord seems to have waived his rights of taking any action on the ground of subletting, if it was within the ambit of the said clauses. There is no dispute that the subletting by the respondent to M/s. Space Tours and Travels was not beyond the ambit of aforesaid clauses of the lease deed. Further, even on equity, the respondent, who was deemed to be in legal possession of the suit premises through the sub-tenant and was allowed to contest the eviction petition filed by the petitioner on merits, was entitled to be restituted of the suit premises, which was got vacated from the subtenant.

9. In view of my above discussion, I do not see any infirmity or illegality in the impugned orders. The petition has no merit and is hereby dismissed.

M.L. MEHTA, J.

NOVEMBER 23, 2012 rmm