Santosh Solanki vs Dada Dev Prabhandhak Sabha (Barah ...
2014 Latest Caselaw 1989 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          RSA No. 105/2014& CM No.6873/2014 (stay)


%                                              22nd April, 2014
SANTOSH SOLANKI                                             ......Appellant
                           Through:      Mr. Prabhat Kaushik and Mr. Rakesh
                                         Kumar and Mr. Deb Nandan Rajak,
                                         Advocates.


                           VERSUS

DADA DEV PRABHANDHAK SABHA (BARAH GAON) PALAM
                                     ...... Respondent

Through:

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?        Yes


VALMIKI J. MEHTA, J (ORAL)

1. This second appeal impugns the judgment of the first appellate

court dated 18.12.2013 by which the first appellate court has dismissed the

appeal as barred by limitation. The first appeal was filed against the

judgment of the trial court dated 11.7.2013 by which the trial court decreed

the suit of the respondent/plaintiff/landlord under Order 12 Rule 6 CPC.

2. The trial court has, by a very thorough and exhaustive judgment

held that the three requirements for decreeing the suit for possession exists

in the present case because surely and firstly the relationship of landlord and

tenant is admitted by the appellant-defendant, the second issue with respect

to notice of termination of tenancy having been served stands settled by the

judgment of this Court in the case of Jeevan Diesels and Electricals Ltd. Vs.

Jasbir Singh Chadha (HUF) & Anr. 183(2011) DLT 712 and thirdly and

finally the appellant-plaintiff cannot have protection of the Delhi Rent

Control Act inasmuch as, by mere urbanization of an area, automatically

Delhi Rent Control Act, 1958 will not apply in view of the judgment of the

Supreme Court in the case of Mitter Sen Jain Vs. Shakuntala Devi (2000) 9

SCC 720 and which Act applies only when a notification is issued under

Section 1 sub-Section 2 of the Delhi Rent Control Act by which operation of

the Act is extended to a specific particular area.

3. The following are the relevant observations of the trial court for

decreeing the suit for possession under Order 12 Rule 6 CPC.

"1.Landlord tenant relationship

It is found that in Para 8 of reply on merits, the defendant has admitted that he has admitted that he has paid the rent till December 2011 against receipts. Further, it has also been admitted that in month of January 2012 the plaintiff started to demand unusual enhanced rent from the defendant, and when objected by the latter, the plaintiff started threatening the defendant that they would be

thrown out. Thereafter rent sent to defendant by money order was refused.

Ld. Counsel for plaintiff has prayed that as it has been admitted by the defendant that he has been paying rent to the plaintiff, the position of a tenant is admitted.

On the other hand, ld. defendant counsel has argued that the plaintiff is not having documents to prove its ownership or title and hence, not entitled to claim possession.

As per Section 116 of Indian Evidence Act:-

"No tenant of immovable property or person claiming through such tenant, shall during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the licence or the person in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when such licence was given."

The principle that the tenant can not deny the title of the landlord in its basic foundation, means no more than that under certain circumstances law considers it unjust to allow a person to approbate and reprobate.

It is well settled that in a suit for ejectement and arrears of rent, the basis of the claim is the contract of tenancy. That being so when the suit is between the original parties to that contract and there has been no transfer of title of the lessor, the question of title of the landlord is outside the scope of the suit.

Adverting to the facts of the present case, once the plaintiff has admitted that that he is a tenant in the temple premises and paying rent to the plaintiff i.e. relationship of landlord and tenant has not been disputed, the defendant is stopped from questioning the ownership rights of the plaintiff.

It is pertinent to mention here that once the landlord tenant relationship is admitted and it is not the case of the defendant that he was not inducted into the premises as tenant by the plaintiff, he cannot challenge the ownership of plaintiff/landlord in terms of section 116 of Indian Evidence Act. And no such stand has been taken by the defendant in his W/S so the objections taken by the defendant mentioned above as serial no.6.

2. Applicability of DRC Act over the suit property

It is an admitted position that village Palam is urbanised vide notification no. F.33/Engg./TP(DP)/11424/94 dt. 24.10.1994 U/s 507 of DMC Act. It is also an admitted position of fact that thereafter, there is no notification of Central Government extending the applicability of DRC Act upon the said urbanized village.

The DRC Act came into forced in the year 1958 and as per section 1(2) of DRC Act 1958, for any area to fall under the jurisdiction of DRC Act. It is necessary that area should fall within the limits of following areas:

1. NDMC

2. Delhi Cantonment Board.

3. Such Urban area within the limits of MCD as specified in the first schedule of the Act.

4. Any other area in the jurisdiction of MCD which is urbanised after the commencement of this Act provided that it is covered by the notification in official Gazette of Central Government under the Act.

In Mittar Sain Jain Vs. Shakuntala Devi DCLR 2000(11) Delhi 268 wherein it was held that "by a notification dt. 24.10.1994 issued U/s 507 of the Delhi Municipal Corporation Act, the rural area falling under Sagarpur where the property in dispute is situated was included within urban area of Delhi Municipal Corporation. It is on the strength of this notification, Ld. counsel urged that once the

area has been included as urban area within the Delhi Municipal Corporation ispo facto, the DRC Act shall be applicable, the arguments is totally misconceived. Even if, any new areas is included within the urban area of MCD, a further notification is required to be issued under proviso to sub section (2) of Section 1 of DRC Act. Unless the area is so specified in the schedule by a notification, the provision of DRC Act can not be made applicable to that area. It is admitted that no notification has yet been issued under the proviso (2) of Section 1 of the DRC Act specifying Sagarpur area within the Schedule of the Act. In absence of such a notification, the provision of DRC Act can not be enforced to the area, namely Sagarpur".

Therefore, it can safely be said that property in question is not covered under DRC Act and the protection of DRC Act is not available to the defendant.

2. As service of legal notice U/s 106 TP Act

The defendant has disputed legal notice dated 16.07.12 as illegal and without any authority and totally false as the defendant has been paying regular rent. Hence, irrespective of the illegality of the legal notice, tenancy is terminated from the date of filing of the suit.

It has been held by the Hon'ble High Court of Delhi in the judgment title as Jeeven Diesels & Electricals Ltd.Vs. Jasbir Singh Chadha (HUF) reported as 183(2011 DLT 712 that:

".............7.(ii). The Supreme Court in the case of Nopany Investment (P) Ltd. Vs. Santokh Singh (HUF), 146 (2008) DLT 217(SC)=1 (2008) SLT 195=2008(2) SCC 728 has held that the tenancy would stand terminated under the general law on filing of a suit for eviction. Accordingly, in view of the decision in the case of Nopany (Supra) I hold that even assuming the notice termination tenancy was not served upon the appellant (though it has been served and as held by me above) the tenancy would stand terminated on filing of the subject suit against the appellant/defendant.

Further in para 8 of the same judgment it was held as under:-

".......8. Therefore, looking at it from any point i.e. the fact that legal notice termination tenancy was in fact served, the suit plaint itself can be taken as a notice terminating tenancy or that the copy of the notice along with documents was duly served to the appellant/tenant way back in the year 2007, I hold that the tenancy of the appellant/tenant stands terminated and the appellant/tenant is liable to hand over the possession of the tenanted premises............"

Therefore in view of aforesaid discussion, the landlord/owner of the suit property is entitled to recover possession of the suit property from the defendant.

11. Therefore, the net result is that the tenancy of the defendant stands terminated. The pleas raised by the defendant are frivolous and bogus. The possession of the defendant in the suit premises is illegal and unauthorised. The result is that the defendant is liable to hand over the vacant and peaceful possession of the suit premises to the plaintiff. The plaintiff is thus entitled to decree for recovery of possession in terms of Order XII Rule 6 CPC. Reference may also be made to the judgments title as Ved Prakash v.Murudhar services reported as 2000(54) DRJ 654 and Mani Mann v. Ram Dulari reported as 2001 (90) DLT 305.

12. The suit is therefore liable to be partly decreed qua the relief of recovery of Possession. The suit qua the relief of recovery of damages and mesne profits would therefore proceed.

13. A decree of possession is therefore passed in favour of the plaintiff and against the defendant directing the defendant to hand over the vacant and peaceful possession of the suit premises i.e. Shop No. 34 area measuring 220 sq. ft. Dada Dev Mandir Prabhandhak Sabha (Barah Gaon) Palam, New Delhi as shown in red colour in the site plan, to the plaintiff."

(underlining added)

4. No doubt, the first appellate court has dismissed the appeal as

barred by time, however, taking that the first appeal would have been filed in

time, I have heard the counsel for the appellant with respect to merits of the

matter.

5. Before me, it could not be disputed that the appellant was a

tenant and consequentially the relationship of landlord and tenant will exist

so far as the suit property is concerned and the appellant/tenant is estopped

under Section 116 of the Indian Evidence Act, 1872 to challenge the

ownership of the landlord. So far as the issue of termination of tenancy is

concerned, the issue stands settled in view of the judgment of this Court in

the case of Jeevan Diesels(supra). Para 7 of the judgment reads as under:-

"7. The second argument that the legal notice dated 15.7.2006 was not received by the appellant, and consequently the tenancy cannot be said to have been validly terminated, is also an argument without substance and there are many reasons for rejecting this argument. These reasons are as follows:-

(i) The respondents/plaintiffs appeared in the trial Court and exhibited the notice terminating tenancy dated 15.7.2006 as Ex.PW1/3 and with respect to which the registered receipt, UPC and AD card were exhibited as Ex.PW1/4 to Ex.PW1/6. The notice admittedly was sent to the correct address and which aspect was not disputed before the trial Court. Once the respondents/plaintiffs led evidence and duly proved the service of legal notice, the appellant/defendant was bound to lead rebuttal evidence to show that the notice was not served although the same was posted to the correct address. Admittedly, the appellant/defendant led no evidence in the trial Court. In fact, even leading of evidence in rebuttal by the appellant would not have ordinarily helped the appellant as the notice was sent to the correct address. In my opinion, therefore, the trial Court was justified in

arriving at a finding that the legal notice dated 15.7.2006 was duly served upon the appellant resulting in termination of the tenancy.

(ii) The Supreme Court in the case of Nopany Investments (P)Ltd. Vs.Santokh Singh (HUF) 2008 (2) SCC 728 has held that the tenancy would stand terminated under general law on filing of a suit for eviction. Accordingly, in view of the decision in the case of Nopany (supra) I hold that even assuming the notice terminating tenancy was not served upon the appellant (though it has been served and as held by me above) the tenancy would stand terminated on filing of the subject suit against the appellant/defendant.

(iii) In the suits for rendition of accounts of a dissolved partnership at will and partition of HUF property, ordinarily it is required that a notice be given of dissolving the partnership at will or for severing the joint status before the filing of such suits because such suits proceed on the basis that the partnership is already dissolved or the joint status of an HUF stands severed by service of notices prior to the filing of such suits. However, it has been held in various judicial pronouncements that the service of summons in the suit will be taken as the receipt of notice of the dissolution of the partnership or severing of the joint status in case of non service of appropriate notices and therefore the suits for dissolution of partnership and partition of HUF property cannot be dismissed on the technical ground that the partnership was not dissolved before filing of the suit or the joint status was not severed before filing a suit for partition of the HUF property by serving of appropriate notices. In my opinion, similar logic can be applied in suits for possession filed by landlords against the tenants where the tenancy is a monthly tenancy and which tenancy can be terminated by means of a notice under Section 106 of the Transfer of Property Act. Once we take the service of plaint in the suit to the appellant/defendant as a notice terminating tenancy, the provision of Order 7 Rule 7 CPC can then be applied to take notice of subsequent facts and hold that the tenancy will stand terminated after 15 days of receipt of service of summons and the suit plaint. This rationale ought to apply because after all the only object of giving a notice under Section 106 is to give 15 days to the tenant to make alternative arrangements. In my opinion, therefore, the argument that the tenancy has not been validly terminated, and the suit could not have been filed, fails for this reason also. In this regard, I am keeping in view the amendment brought about to Section 106 of the Transfer of Property Act by Act 3 of 2003 and as per which Amendment no objection with regard to termination of tenancy is permitted on the ground that the legal notice did not validly terminate the tenancy by a notice ending with the expiry of the tenancy month, as long as a period of 15 days was otherwise given to the tenant to vacate the property. The intention of Legislature is therefore clear

that technical objections should not be permitted to defeat substantial justice and the suit for possession of tenanted premises once the tenant has a period of 15 days for vacating the tenanted premises.

(iv) Another reason for rejecting the argument that the tenancy would not be terminated by the legal notice Ex.PW1/3 is that the respondents/plaintiffs admittedly filed a copy of this notice alongwith the suit way back in the year 2007. Once the summons in the suit alongwith documents were served upon the appellant/tenant, the appellant/tenant would obviously have received such notice. Even if we take this date when the appellant/tenant received a copy of the notice when served with the documents in the suit, once again, the period of 15 days has expired thereafter and keeping the legislative intendment of amended Section 106 in view, the appellant therefore cannot argue that the tenancy is not terminated and he did not get a period of 15 days to vacate the premises. I am in view of this position consequently entitled to take notice of subsequent events under Order 7 Rule 7 CPC, and taking notice of the subsequent events of the expiry of 15 days after receipt of a copy of the notice alongwith documents in the suit, I hold that the tenancy has been validly terminated, and as on date, the appellant/tenant has no right to stay in the premises and consequently the decree for possession was rightly passed by the trial Court."

An SLP against the said judgment being SLP No.15740/2011 has been

dismissed by the Supreme Court on 7.7.2011.

6. That takes us to the third aspect as to whether the suit property

which is situated in village Palam, is or is not covered by the Delhi Rent

Control Act. The case of the appellant-defendant was that the suit property is

covered under the Delhi Rent Control Act only for the reason that the area in

question has been urbanized by issuing of notification under Section 507 of

the Delhi Municipal Corporation Act 1957(in short 'DMC Act'). This

aspect is covered against the appellant as per the judgment of the Supreme

Court in the case of Mitter Sen Jain (supra). Since the judgment of the

Supreme Court is a short judgment of about four paragraphs, I reproduce the

said judgment as under:-

"1. The appellant herein is a tenant of the premises situated at Sagarpur in Delhi, whereas the respondent is the landlord. The landlord let out the premises to the appellant on a monthly rent of Rs. 400/- per month. Subsequently, the landlord terminated the tenancy by giving notice under Section 106 of the Transfer of Property Act. The landlord thereafter brought a suit for ejectment of the tenant as well as for recovery of arrears of rent and mesne profit. Before the Trial Court the tenant filed a written statement wherein one of the pleas taken was that the premises which was let out to him was covered by Delhi Rent Control Act, 1958 and as such the suit is not maintainable. The Trial Court held that the premises was not covered by the Delhi Rent Control Act, 1958. Consequently, the suit was decreed. First Appeal was preferred to the learned District Judge, which was dismissed. Thereafter the appellant filed a Second Appeal before the High Court and the same was also dismissed. It is in this way the appellant is before us in appeal.

2. The only argument raised on behalf of the appellant is that since the premises of which the appellant is a tenant is covered by Delhi Rent Control Act and therefore, the suit filed by the landlord in Civil Court was not maintainable and decree passed therein is void ab initio. In order to appreciate the argument, it is worthwhile to extract the relevant provisions of Delhi Municipal Corporation Act as well as Delhi Rent Control Act, which are as follows

Section 507 of Delhi Municipal Corporation Act:

"507 (a) the Corporation with the previous approval of the Government, may, by notification in the Official Gazette, declare that any portion of the rural areas shall cease to be included therein and upon the issue of such notification that portion shall be included in and form part of the urban areas;"

Sub-section (2) of Section 1 of the Delhi Rent Control Act:

"1. (2) It extends to the areas included within the limits of the New Delhi Municipal Committee and the Delhi Cantonment Board and

to such urban areas within the limits of the Municipal Corporation of Delhi as are specified in the First Schedule:

Provided that the Central Government may, by notification in the Official Gazette, extend this Act or any provision thereof, to any other urban area included within the limits of the Municipal Corporation of Delhi or exclude any area from the operation of this Act or any provision thereof.

3. Subsequently, by a notification dated 24.10.1994 issued under Section 507 of the Delhi Municipal Corporation Act, the rural area falling under Sagarpur when the property in dispute is situate was included within the urban area of Delhi Municipal Corporation. It is on the strength of this notification, learned Counsel urged that once the area has been included as urban area within the Delhi Municipal Corporation ipso facto, the Delhi Rent Control Act shall be applicable the argument is totally misconceived. Even if any new area is included within the urban area of Municipal Corporation of Delhi, a further notification is required to be issued under proviso to Sub-section (2) of Section 1 of the Delhi Rent Control Act. Unless the area is so specified in the Schedule by a notification, the provisions of the Delhi Rent Control Act cannot be made applicable to that area. It is admitted that no notification has yet been issued under the proviso to Sub-section (2) of Section 1 of the Delhi Rent Control Act specifying Sagarpur area within the Schedule of the Act. In absence of such a notification, the provisions of Delhi Rent Control Act cannot be enforced to the area, namely, Sagarpur.

4. No other point was pressed. The appeal fails and is dismissed accordingly. No costs.

5. However, the appellant shall not be evicted from the premises in dispute till 31st December, 2000 provided he files usual undertaking within four weeks. He shall deposit the arrears of rent within one month and continue to pay the rent/damages for the period he continues in possession of the premises, failing which the interim order shall stand vacated without further order of the Court."

(emphasis added)

7. Therefore, it is clear that merely because the area is urbanized

by virtue of Section 507 DMC Act that would not mean that the suit

property will have protection of the Delhi Rent Control Act.

8. I may note that the issue with respect to the area of village

Palam be covered under the Delhi Rent Control Act by issuing of a

notification by the government came up in a Public Interest Litigation filed

in this Court by the Palam Area Tenants Association by CW 4284/2000

titled as Palam Area Tenants Association Vs. Union of India & Anr.. This

writ petition was dismissed by a Division Bench of this Court vide its

judgment dated 29.7.2013 by making the following observations:

"This matter is placed before this court as it is stated that it is a Public Interest Litigation. The main prayer is for issuance of notification extending Delhi Rent Control Act, 1958 to the revenue estate of entire Palam village restrospectively with effect from 03.11.1994, i.e from the date on which the area was declared urbanized. Such amendment cannot be allowed by this Court. The law is very clear on the subject. The Apex Court in "Union of India V/s Shree Gajanan Maharaj Sansthan JT 2002 (Suppl. 1) SC 94", has stated as under:

"This Court observed that no mandamus could be issued to the Executive directing it to commence the operation of the enactment; that such a direction should not be construed as any approval by the Court, of the failure on the part of the Central Government for a long period to bring the provisions of the enactment into force."

In this view of the matter, this petition is required to be dismissed.

Ordered accordingly.

xxxxx (underlining is mine)

9. Therefore, in view of the above discussion, it is clear that the

appellant will have no protection of the Delhi Rent Control Act because the

operation of the Delhi Rent Control Act is not extended to the area of village

Palam where the suit property is situated.

10. Learned counsel for the appellant argued that in a connected

matter being RSA No. 198/2013 titled as Ram Gopal Gupta Vs. Dada Dev

Prabandhak Sabha (Barah Gaon) Palam, the appeal was allowed by

remanding the matter and directing evidence to be led, however, I note that

the order passed in RSA No.198/2013 would not be res judicata because the

aspects which have been discussed by this Court today have not been

discussed and considered in the order dated 6.9.2013 in RSA No. 198/2013.

11. No other point is urged or pressed by the counsel for the

appellant.

12. In view of the above, there is no merit in the appeal, and the

same is therefore dismissed, leaving the parties to bear their own costs.

APRIL 22, 2014                                VALMIKI J. MEHTA, J.
ib