Delhi High Court

Shashi Bhushan Lal vs Kanshi Ram on 23 July, 2014

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ CM(M) 1301/2013
% 23rd July , 2014

SHASHI BHUSHAN LAL ......Petitioner
Through: Mr. Braj Bhushan Lal, Adv.

VERSUS

KANSHI RAM ...... Respondent
Through:

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. There was a Section 39 in Delhi Rent Control Act, 1958 (hereinafter

referred as to 'the Act') which provided for filing of a second appeal.

Second appeal could be filed only on limited ground of there existing a

substantial question of law. The provision of Section 39 has been repealed

by Act 57 of 1988 w.e.f 1.12.1988. Once second appeal cannot lie, a petition

under Article 227 of the Constitution of India cannot be filed as a substitute

for a second appeal. These observations I am making because if scope of

hearing of a second appeal is limited, then the scope of hearing a petition

under Article 227 of the Constitution of India is further limited, and also it is

CM(M) 1301/2013 Page 1 of 5
a discretionary jurisdiction to be exercised only when there is occasioned

gross injustice.

2. In the present case, both the courts below have arrived at a finding of

fact with respect to the period from which the rent of Rs.525/- per month is

payable i.e w.e.f 1.6.1998. The respective contentions and evidence both

documentary and oral, has been considered by the courts below to give

finding of fact of the rent being payable at Rs.525/- per month w.e.f

1.6.1998. Also, correct reasons have been given for claiming the arrears of

rent prior to three years of sending of the legal notice and only on non-

compliance of which the limitation period commences for filing a petition

under Section 14(1)(a) of the Act for non-payment of rent. It is also noted

that no period of limitation is provided for filing a petition under the Act and

to which aspect I may further note that in some Rent Control Act of certain

States it has been held by the Supreme Court that limitation period will be of

12 years as the eviction petition is qua an immovable property. The relevant

conclusions of the impugned judgment are as under:-

13. The relationship of landlord and tenant between the parties
is not in dispute. In the demand notice Ex.AW1/3 the landlord
has claimed that tenant was in arrears of rent w.e.f. 01.06.1998.
The eviction petition was filed on 29.01.2003. The limitation
period for legally recoverable arrears of rent is three years. The
question arises whether the period of three years should be prior
CM(M) 1301/2013 Page 2 of 5
to legal demand notice or prior to filing of eviction petition. The
question assumes importance as there is considerable gap in the
present case between the legal demand notice E.AW1/3 dated
06.11.2000 and filing of eviction petition on 29.01 2003. The
phraseology of Section 14(1) (a) of the Act shows that the phrase
"legally recoverable" regarding arrears of rent is used in respect
of two months notice of demand for arrears of rent to be served
upon by the landlord to the tenant as indicated in this provision
of law. The Bhimsen Gupta's case (supra) relied upon on
behalf of tenant does not pertain to DRC Act and deals with
Bihar building (Lease, Rent and Eviction) Control Act, 1982. In
that case instead of using the word "arrears of rent legally
recoverable" the expression used was "lawfully payable". In
Bhimsen Gupta's case (supra) some distinction is indicated
between phrases "lawfully payment" and "lawfully recoverable".
Therefore, Bhimsen Gupta's case (supra) does not apply to the
case u/s 14 (1) (a) of the Act.
14. In Kamla Bakshi's case (supra) relied upon by the Id.
Counsel for the landlord the Hon'ble Supreme Court has held the
landlord is entitled to recover to rent immediately preceding to
the issuance of demand notice. In Divender Singh's case
(Supra) also a case u/s 14 (1) (a) of the Act our Hon'ble High
Court has clarified that if notice is not complied within statutory
period of two months, then landlord may file eviction petition
after three years as limitation act is not applicable to rent control
proceedings. Therefore, what matters is that the arrears of rent
should pertain to the period of legally recoverable arrears of three
years up to issuance of demand notice of two months u/s 14 (1)
(a) of the Act. The period of three years of legally recoverable
rent is not to be counted prior to the date of filing of eviction
petition in the light of Devender Singh's case (supra) and
kamla Bakshi's case (supra).
15. It is true that admission by a party of a fact in cross
examination is an important piece of evidence, this admission
can be used against the party making it. In the cross examination
on 22.09.2004, the landlord has admitted it correct that he had no
dispute with the tenant prior to 21.10.2000. He did not specify in
this statement that he had no dispute with the tenant with regard
CM(M) 1301/2013 Page 3 of 5
to 'arrears of rent' prior to 21.10.2000. Therefore, this statement
or admission made by the landlord in the cross examination may
give several interpretations. It may be interpreted to mean that
despite non payment of rent he did not raise dispute upto
21.10.2000 with tenant. It may also mean that the landlord had
not quarreled with the tenant nor initiated any litigation or legal
action against the tenant prior to 21.10.2000. It may also mean
that there was no dispute with the tenant as the tenant had paid
rent upto 21.10.2000. The position, therefore, should have been
got clarified from the landlord in the further cross examination
by the tenant. Rather as pointed out by ld. Counsel for the
landlord in the next line in the cross-examination the landlord has
stated that even before 1998 the tenant was not payment rent
regularly. This further statement of landlord erodes the value of
earlier admission that there was no dispute prior to 21.10.2000.
It is a settled legal position the admission of the parties either in
the form of documents or in the pleadings or statements on oath
made before court should be read and interpreted as a whole.
Therefore, in the given facts and circumstances by reading the
statement of landlord made before Ld. ARC as a whole it cannot
be interpreted to mean that there was no dispute as to arrears of
rent upto 21.10.2000, more so, when the parties are at dispute
prior to 21.10.2000 and afterwards also with regard to rate of rent
of tenancy premises.
17. But the benefit of this document can be derived by the
tenant when it is not replied, challenged or contested by the
landlord. The question is whether there is no reply to the letter
dated 07.11.2000 by the landlord in the case? Admittedly, the
landlord got issued legal demand notice dated 06.11.2000 which
according to tenant was served upon him on 14.11.2000 as
according to tenant it was sent as a counter blast to Ex.AW1/5
the letter of the tenant Since, legal demand notice Ex.AW1/3
claiming arrears of rent from 01.06.1998 is issued by the landlord
to the tenant and admittedly served upon the tenant after the date
of his letter Ex.AW1/5 which is dated 07.11.2000 and it is argued
on behalf of tenant that it was sent as a counter blast by
antedating to legal demand notice, the letter of the tenant
Ex.AW1/5 dated 07.11.2000 cannot be treated as uncontroverted
CM(M) 1301/2013 Page 4 of 5
or unchallenged. If the contention of tenant is accepted then the
legal demand notice Ex.AW1/3 which was received by the tenant
on 14.11.2000 has disputed the facts stated in EX.AW1/5. If the
contention of landlord is accepted and legal demand notice was
got prepared on 06.11.2000 as stated by the landlord in the cross
examination on22.09.2004 before Ld. ARC and also his
statement that he did not replay E.AW1/5 and voluntarily stated
that he had already sent notice dated 06.11.2000 through his
counsel, there was no need for sending any further reply to
ExAW1/5. The matter can be looked from either angle and it
cannot be said that facts stated inEx.AW1/5 remained
unconverted or undisputed by the landlord. In this view of the
matter and facts and circumstances of the case and in view of
legal demand notice Ex AW 1/3 served upon the tenant, the
Kaveripatnam Subbaraya Setty's case (Supra) and Kanshi
Ram's case (supra) would not help the tenant.

3. Once two views are possible, and the conclusions which are arrived at

by the courts below are plausible and possible, merely because another view

is possible, the extraordinary and discretionary jurisdiction under Article 227

of the Constitution of India cannot be exercised or invoked by a litigant.

4. In view of the above, there is no merit in the petition, and the same is

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

JULY 23, 2014 VALMIKI J. MEHTA, J.