Prakash Chand Kaushik vs M/S Vishal Timer Traders
2016 Latest Caselaw 1792 Del

*               HIGH COURT OF DELHI AT NEW DELHI

+                   RFA 163/1986 & CM APPL.12589/2011

                                               Decided on: 4th March, 2016

       PRAKASH CHAND KAUSHIK                                ..... Appellant
                           Through:     Mr. R.K. Trakru, Advocate with
                                        Ms. Bela Khattar, Adv.


                           versus


       M/S VISHAL TIMER TRADERS                       ..... Respondents
                           Through:     Mr. K. Sunil, Advocate
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (ORAL)

1. This is an appeal filed by the appellant against the order dated 30.11.1985 by virtue of which the learned Additional District Judge has decreed the suit for damages but dismissed the suit for ejectment filed by the appellant against the respondent/defendant.

2. Briefly stated the facts of the case are that the present appellant had allegedly let out a piece of vacant land to the respondent on 01.05.1974 on a monthly rent of Rs.525/- for the period of 11 months. However, despite the expiry of 11 months the respondent continued to be in occupation of the tenanted premises and in the year 1976 the respondent filed a petition bearing No.10/1976 for fixation of standard rent against the appellant. The said petition

continued in the Courts for almost three years and on 08.08.1979, respondent No.2 as the sole proprietor of respondent No.1 withdrew the petition on the ground that the portion let out to the respondent did not constitute „premises‟ within the definition of the Delhi Rent Control Act.

3. The appellant issued a legal notice on 16.03.1982 terminating the tenancy of the respondent and filed a suit for possession and recovery of arrears of rent to the tune of Rs.18,900/-.

4. The respondent filed his written statement and contested the suit on various grounds. It was stated by the respondent that the suit is barred by Section 50 of the DRC Act as the premises which was let out to him were notified to be covered by the Rent Act w.e.f. 27.03.1979. The tenanted premises were situated in Village Nangli Jabal, Union Territory of India, now forming part of Ganesh Nagar, Najafgarh Road, New Delhi. The respondent also denied the ownership of the appellant. It was not the case of the appellant that the tenanted portion does not constitute premises within the definition of Section 2 (i) of the Delhi Rent Control Act, 1958.

5. On the pleadings of the parties following eight issues were framed:-

"i) Whether the rent deed in question was got executed by practicing any fraud or misrepresentation as alleged?

ii) Whether there does not exist relationship of landlord and tenant between the parties?

iii) Whether the contractual tenancy of the defendant has been validly terminated?

iv) Whether the plaintiff has ceased to be owner of the property in question, as alleged in para 1 of the preliminary objections. If so, its effect?

v) Whether the plea of fraud and misrepresentation is available to the defendant without supplying any particulars of fraud?

vi) Relief.

vii) Whether DDA and the Union of India are necessary parties? If so, its effect?

viii) Whether the provisions of Delhi Rent Control Act are applicable to the property in question?"

6. To prove his case the appellant/plaintiff examined three witnesses, namely, PW-1 Prakash Chand (appellant), PW-2 Ashwani Kumar, Postman Rajouri Garden, PW-3 Hardaya, Singh Pental, Examiner of questioned documents. Whereas the respondent/defendant examined six witnesses namely, DW-1 R.K. Rametra, DW-2 S.P. Magoo, Station Officer, Fire Station, Moti Nagar, DW-3 Mrs. R.K. Vij, Handwriting Expert, DW-4 Jai Prakash, Junior Engineer, DDA, DW-5 Sanjay Kumar, LDC, Enforcement Department, DDA and DW-6 S.P. Kaura, Assistant Director Vigilance, DDA.

7. All the issues except issue No.8 were decided by the learned ADJ in favour of the appellant. So far as issue No.8 is concerned, it was held that the vacant land which was let out to the respondent does not constitute 'premises' within the definition of the Delhi Rent Control Act, 1958. It was admitted by both the parties that the

Delhi Rent Control Act is applicable in the area where land in question was situated and therefore, the suit so far as recovery of possession is concerned was held to be barred by Section 50 of the DRC Act. So far as the recovery of arrears of rent is concerned, to that extent the suit of the appellant for a sum of Rs.18,900/- was decreed.

8. Feeling aggrieved of the aforesaid judgment and decree the appellant has preferred the present appeal.

9. I have heard Mr. Trakru, the learned counsel for the appellant and Mr. K. Sunil, the learned counsel for the respondent.

10. The learned counsel for the appellant has raised basically three points. The first contention of the learned counsel for the appellant is that the findings returned by the learned ADJ with regard to applicability of Section 50 of the Rent Control Act to the plot in question as regards facts of the present case, are totally erroneous. It has been contended that the Lease Deed between the parties clearly shows that what was let out by the appellant to the respondent was a vacant piece of land and this fact got corroborated by the fact that the respondent himself had filed a suit for fixation of rent in the year 1976 against the present appellant which continued for almost three years and after the expiry of the said period the suit for fixation of standard rent was withdrawn by the respondent on the ground that the tenanted premises did not constitute 'premises' as defined in the Delhi Rent Control Act.

11. It has been contended by the learned counsel for the appellant that the very fact that the respondent chose to file a petition for fixation of standard rent, which was withdrawn by him specifically on the plea that the tenanted premises did not constitute 'premises' under Section 2 (i) of the DRC Act clearly estoppes the respondent from taking a contrary stand, who is now changing his stand and contending that the tenanted premises was not a vacant land but a premises within the definition of the Rent Act and, therefore, the Rent Act could not be made applicable.

12. Mr. K. Sunil, the learned counsel for the respondent has contested this submission of the learned counsel for the appellant. He has relied upon the doctrine that there is no estoppel against law. The learned counsel has tried to draw the attention of the Court to the evidence which has been adduced to contend that there were temporary structures on the vacant land and because of these temporary structures which were existing on the vacant land, the tenanted premises could not be said to be a simplicitor vacant piece of land which will not attract the provisions of the Rent Act. Further, it is stated that the tenanted portion constitute 'premises' within the definition under Section 2 (i) of the DRC Act and even if the statement was made by the respondent withdrawing the suit that did not preclude him from contending that the premises were covered by the Rent Act and therefore, the suit in a Civil Court was not maintainable. It was contended that it did not tantamount to waiving the estoppels against the law. Further, the learned counsel

has contended that the Notification was issued in the year 1979 making the Rent Act applicable to the premises in question and, therefore, the Rent Act was applicable.

13. I have carefully considered the submissions made by the learned counsel for the parties. I find merit in the contention of the learned counsel for the appellant. The one thing is very clear that there is no estoppel against law. Meaning thereby that if something is prohibited by law and even if a person concedes that he will do something in violation of the said provision of law, or has already done so he could still retrace his steps. Reliance in this regard is placed on Faqir Chand v. Ram Rattan Bhanot, AIR 1973 SC 921. But, in the instant case, there is no such violation of the principle of estoppel against law. On the contrary, there is only an admission of fact made by the appellant and if there is an admission of a fact made by a party on the basis of which another party or the opposite party changes his stand then the first party cannot retrace his steps since he will be prohibited by doctrine of estoppel.

14. To clarify and amplify this point with reference to the facts of the case it is stated that the Lease Deed shows that what was let out by the appellant to the respondent was a vacant piece of land. After two years of letting out, the respondent himself had gone to the Rent Controller Court for fixation of standard rent. But, curiously, after pursuing his remedy for almost three years, he chose, for the reasons best known to him to withdraw the said petition for fixation of standard rent by stating that the tenanted portion did not

constitute 'premises' with the definition of Section 2 (i) of the DRC Act. Once he had done so, now he cannot change his stand that the tenanted portion constitutes premises and therefore jurisdiction of the Civil Court is barred.

15. The present appellant chose to file the eviction petition against him under the ordinary civil law. Once that is done, it is not open to the respondent now to contend that the suit for possession is not maintainable because the tenanted portion constitutes „premises‟ as he would be precluded by virtue of the doctrine of estoppel to change his stand.

16. This gets further fortified by the fact that a person cannot be permitted to approbate and reprobate. Meaning thereby a person cannot be permitted to blow hot and cold in the same breath as is being done by the appellant. It is, therefore, because of the aforesaid reasons, I feel that the finding returned by the learned trial Court holding that the premises were governed by Section 50 of the Rent Act is totally erroneous, illegal and unreasonable in law.

17. The second submission made by the learned counsel for the appellant is that the respondent had challenged his ownership. The learned counsel for the respondent has given up this plea of challenging the ownership and rightly so because the respondent himself was admittedly paying rent to the appellant and once he had concealed this fact, it is not open to him by virtue of Section 116 of the Evidence Act to challenge the ownership of his landlord.

In any case in the suit for recovery of possession from a tenant it is not necessary for the appellant to prove his ownership when the respondent himself is admitting that he was inducted as a tenant by the appellant.

18. For the aforesaid reasons, I feel that the finding which has been returned by the learned trial Court on issue No.8 is totally perverse. Issue No.8 ought to have been decided in favour of the appellant and is decided so.

19. I accordingly set aside the judgment and the decree dated 30.11.1985 passed by the learned trial Court and decree the suit of the appellant.

20. Pending application also stands disposed of.

V.K. SHALI, J.

MARCH 04, 2016 vk