Prakash Chander Kaushik vs M/S Vishal Timer Traders & Anr.
2017 Latest Caselaw 4005 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+           Review Petition No. 364/2016 in RFA No. 163/1986

%                                                      9th August, 2017

PRAKASH CHANDER KAUSHIK                   ..... Appellant
                Through: Mr. R.K. Trakru, Advocate.

                          versus

M/S VISHAL TIMER TRADERS & ANR.            ..... Respondents

Through: Mr. K. Sunil, Advocate for R-2.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

Review Petition No. 364/2016 in RFA No. 163/1986

1. This review petition is filed in the appeal under Section

96 Code of Civil Procedure, 1908 (CPC) filed against the impugned

judgment of the trial court dated 30.11.1985 whereby the suit for

possession filed by the appellant/plaintiff with respect to the suit

property was dismissed by giving a finding with respect to additional

issue no. 8 that the suit property was a constructed property and

therefore was a premises and accordingly the suit for

possession/eviction in a civil court would be barred under Section 50

R.P. No. 364/2016 in RFA No. 163/1986 1 of 15 of the Delhi Rent Control Act, 1958 (hereinafter referred to as the

„DRC Act‟) and that admittedly there existed a relationship of landlord

and tenant between the parties.

2. The suit property is the property as described in the lease

deed dated 8.5.1974 entered into between the parties. This lease deed

is an admitted document and this lease deed has been exhibited as

Ex.P-10. The first two pages of this lease deed, and which are

relevant to determine the issue of whether what is let out is an

unconstructed premises or a premises as per section 2(i) of the DRC

Act and therefore as to whether the suit is barred under Section 50 of

the DRC Act, read as under:-

"This Rent Deed is made at Delhi on this 8th day of May 1974 by between Vishal Timber Trades WZ-1, Ganesh Nagar, N.G.Rd. New Delhi through its partner Sh. Surinder Nath Gupta son of Sh. Ram Rattan Gupta R/o Dhangu Road, Pathankot hereinafter called the Tenant IN FAVOUR OF Sh. Parkash Chander Kaushak s/o Sh. Shiv Charan Kaushak of 2481 Malva Street, Paharganj, New Delhi now at 1 Ganesh Nagar, New Delhi owner of Plot No. WZ-1, Ganesh Nagar, New Delhi-18 hereinafter called the Landlord.

The expression of the tenant and landlord referred to above shall mean and include the tenants, landlord their legal executors, administrators, heirs, successors, respectively.

Whereas the said landlord is the owner of a freehold plot of land bearing No. WZ-1, Measuring total area 824 sq. yard at Ganesh Nagar a freehold colony on main N.G. Road, New Delhi and on its eastern portion the said landlord himself carrying on his personal dealings.

R.P. No. 364/2016 in RFA No. 163/1986 2 of 15 That towards West Side just on main side the said tenant has taken from the said landlord on payment of monthly rent an area the dimensions of which are as under:

In Front side : (Road side) 12; width and 90; length, at the back side the width is 10 1/2 feet only this site is half covered and the remaining half uncovered. It is used as commercial premises and electrically fitted. It is bounded as under: East the Landlord‟s remaining portion of the said plot occupied by his concern m/s Kaushak Sales Corporation West : Marodia Timber Traders : North : Landlord‟s vacant land South Main N.G. Road. The said tenant has taken the said premises from the landlord or payment of monthly rent @ Rs.525/- (Rs.Five hundred and twenty five only) commencing from 8.5.1974. The tenant has stated a Timber dealings in the said portion under the name and style VISHAL TIMBER TRADERS and the said tenanted portion is bounded as under: East : Remaining portion of the said plot : West the Marodia Timber Traders North: vacant land of Landlord. South N.G. Road. The terms and conditions of this rent deed agreed between the parties are as under:

1. The monthly agreed rent at Rs.525/-. The tenancy commences from 8.5.74 from a specified period of 11 months. Each month rent payable in advance in the Ist week of each English Calendar month on the face of a proper receipt duly signed by the land lord or authorized agent without which no payment will be acknowledged.

2. The area in occupation of the tenant as mentioned above is 12 ft.

width on road side and 10 ½ ft width on back side (north side) and the length on both side eastern and western side is 90 ft and half of the said portion is covered with the structure of the landlord.

3. The tenant has paid to the landlord a sum of Rs.9,000/- in cash as well advance rent and the tenant will get its adjustment of Rs.100/- only each month out of the said advance each month and thus the tenant shall be paying Rs.425/- each month in cash instead of Rs.525 the fixed and agreed rent. After the entire advance money becomes exhausted and discharged by monthly adjustment in the manner explained above, the tenants shall be paying the full rent Rs.525/- in future. Till the advance sum is adjusted and becomes discharged by monthly adjustment the tenant shall be bound to continue the tenancy provided ..." (emphasis added)

3. I may note that the suit was filed way back on 28.12.1983

i.e around 34 years back. This Regular First Appeal was allowed by a

Learned Single Judge of this Court as per his judgment dated

R.P. No. 364/2016 in RFA No. 163/1986 3 of 15 4.3.2016. In this judgment Learned Single Judge held that what was

let out was not a premises (i.e not a constructed building) and

therefore the DRC Act will not apply. Learned Single Judge by his

judgment dated 4.3.2016 set aside the finding of the trial court on

issue no. 8 and held that the suit was not barred by Section 50 of the

DRC Act. The suit of the appellant/plaintiff for possession of the suit

property was therefore decreed.

4. The judgment of the Learned Single Judge of this Court

dated 4.3.2016 allowing the Regular First Appeal and decreeing the

suit for possession was taken in challenge by the present

respondent/tenant before the Supreme Court and Supreme Court in

SLP (C) No. 1277/2016 passed the following order on 29.6.2016:-

"Learned counsel for the petitioners vehemently contends, that the jurisdictional aspect has wrongly been considered by the High Court. It is submitted, that the matter could not have been disposed of on the basis of the earlier proceedings pending before the Rent Controller which was sought to be withdrawn by the petitioners. The reason for the same is depicted in ground `F' in SLP(C) No.13229 of 2016, which is extracted hereunder:

"For that the Impugned Judgment passed by Hon'ble High Court is bad and is liable to be set aside/quashed as the High Court has not considered aspect of earlier initiating the proceedings under Delhi Rent Control Act, 1958 and thereafter the petition was not pursued for the reason that the area where the property is situated was not brought within the ambit of Delhi Rent Control Act, 1958 and after the notification it was brought so.

Consequently the respondent had withdrawn the petition filed by the

R.P. No. 364/2016 in RFA No. 163/1986 4 of 15 respondent. However, the fact remained that the tenanted premises has been brought within the ambit of Delhi Rent Control Act, 1958." Having perused the impugned order, we are satisfied that the purely legal position raised in ground `F' in SLP(C) No.13229 of 2016, has not been examined by the High Court. In the above view of the matter, we consider it just and appropriate to allow the petitioners to file a review petition before the High Court solely based on the legal position emanating out of ground `F', extracted above. In case the petitioners do not succeed in the review petition filed by them before the High Court, they shall have the liberty to approach this Court against the order passed on review. Needless to mention, that the High Court should not feel that this Court, through the instant order, has expressed any opinion on the merits of the controversy. The special leave petitions stand disposed of in the manner indicated above."

5. In terms of the order of the Hon‟ble Supreme Court

therefore this Court has to examine the Regular First Appeal on merits

with respect to ground „F‟ of whether the suit premises fall or do not

fall within the preview of the DRC Act.

6. At the outset, I would like to note that in fact both the

parties are guilty of not bringing to the notice of the Hon‟ble Supreme

Court when the order was passed on 29.6.2016 that the issue was not

of whether the premises were brought within the ambit of the DRC

Act and as to whether by notification the suit premises were brought

within the applicability of the DRC Act, because, taking that the DRC

Act applied, and this position was taken as correct by the Learned

Single Judge who allowed the RFA by judgment dated 4.3.2016,

R.P. No. 364/2016 in RFA No. 163/1986 5 of 15 whether at all what was let out was a premises as per Section 2(i) of

the DRC Act even if the DRC Act was extended to/applied to the

area/premises in question. In other words, the DRC Act only applies

to constructed premises and not to any plot or land or plot of land with

temporary structures. Section 2(i) of the DRC Act reads as under:-

"2. Definitions. -(i) "premises" means any building or part of a building which is, or is intended to be, let separately for use as a residence or for commercial use or for any other purpose, and includes.-

(i) the garden, grounds and outhouses, if any, appertaining to such building or part of the building;

(ii) any furniture supplied by the landlord for use in such building or part of the building;

but does not include a room in a hotel or lodging house;"

7. Therefore, it is seen that the issue in the present case is

not of applicability of the DRC Act by a notification being issued

extending the DRC Act to the area in question, but, taking that the

DRC Act applies, whether the suit premises were „premises‟ as per

Section 2(i) of the DRC Act for the DRC Act to apply. If the suit

premises are not premises then the DRC Act would not apply and

Section 50 of the DRC Act will not bar the jurisdiction of the Civil

Court to decide the suit for granting decree of possession. At this

stage, therefore, I would like to seek to refer to paras 10 to 16 of the

R.P. No. 364/2016 in RFA No. 163/1986 6 of 15 judgment of the learned Single Judge dated 4.3.2016 and which deals

with this aspect as under:-

"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.

R.P. No. 364/2016 in RFA No. 163/1986 7 of 15

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." (emphasis added)

8. Therefore, the Learned Single Judge by his judgment

dated 4.3.2016 came to a finding of fact by reference to the lease deed

Ex.P-10 entered into between the parties and to Section 2(i) of the

R.P. No. 364/2016 in RFA No. 163/1986 8 of 15 DRC Act that since what is let out to the respondent by the appellant is

not a premises therefore the DRC Act does not apply. Learned Single

Judge also held that the respondent cannot approbate and reprobate,

inasmuch as, the respondent himself had withdrawn his petition for

fixation of standard rent filed under the DRC Act and before the Rent

Controller by stating at the time of withdrawal that the suit premises

are not premises within the meaning of Section 2(i) of the DRC Act.

Also, the appellant had filed a petition for eviction of the respondent

under Section 14(1) of the DRC Act before the Rent Controller and

this eviction petition was withdrawn on the statement made by the

present respondent in those eviction proceedings before the Rent

Controller that the suit premises were not premises and hence the

DRC Act did not apply.

9. Since however the Hon‟ble Supreme Court has directed

this Court to examine afresh the basis of allowing of the RFA in view

of ground „F‟ reproduced in the order of the Supreme Court dated

29.6.2016, this aspect is now therefore again decided.

10. I have already stated above that the issue is not of

extension of the DRC Act to the area in question where suit premises

R.P. No. 364/2016 in RFA No. 163/1986 9 of 15 are located by extending the DRC Act by a notification under Section

1 of the DRC Act, but the issue is that taking that the premises are

within the area of applicability of the DRC Act, yet, the DRC Act

would not apply because what is let out is not premises as per Section

2(i) of the DRC Act i.e what is let out is only land or land with

temporary structure which cannot be a constructed premises falling

under Section 2(i) of the DRC Act. I would also like to note at this

stage that the DRC Act automatically does not apply to all the areas in

Delhi and if the DRC Act has to apply to an area in Delhi then a

notification is required under Section 1 of the DRC Act. When the

DRC Act was passed in the year 1958 it applied to certain areas and

did not apply to certain other areas in Delhi, and therefore for the DRC

Act to apply to those areas which it did not apply when the Act was

passed, a notification had to be passed by the appropriate authority

under Section 1 of the DRC Act extending the DRC Act to the new

area/additional area.

11. Let us now turn to the issue as to whether or not what was

let out by the appellant to the respondent was or was not premises as

per Section 2(i) of the DRC Act. It is trite and settled law that what is

R.P. No. 364/2016 in RFA No. 163/1986 10 of 15 only a plot of land or a plot of land with only a temporary structure(s)

will not be covered under the definition of premises in Section 2(i) of

the DRC Act because Section 2(i) of the DRC Act clearly states that

the premises has to be a building or part of building i.e a constructed

premises. I have already reproduced above the first two pages of the

lease deed dated 8.5.1974, Ex.P-10. The language of this lease deed

has to be examined for its meaning where it is stated that half the site

is covered and half the site is not covered. The issue is whether half

the site being covered can be interpreted to be that what is let out is a

building i.e a constructed property/building.

12. Learned counsel for the respondent/tenant has argued by

relying upon the admission in the cross-examination of the

appellant/plaintiff wherein the appellant/plaintiff has admitted that as

per the lease deed half the site is covered and half the site is uncovered

that this shows that a building was let out. It is also argued by the

respondent that withdrawal of the earlier proceedings initiated by the

respondent for fixation of standard rent under Section 6 of the DRC

Act will not cause an estoppel against the respondent to plead the

correct fact of the premises being covered under the DRC Act,

R.P. No. 364/2016 in RFA No. 163/1986 11 of 15 inasmuch as, the suit property is a premises under Section 2(i) of the

DRC Act.

13. In my opinion, the expression „covered‟ found in the

lease deed Ex.P-10 is definitely different from the expression

„construction‟ or „constructed‟. Covering of property can be by

various materials including only temporarily by a tin shed or a

temporary structure or by tarpaulin etc etc. If the object of the parties

was to let out a constructed building then what was the difficulty in

the lease deed mentioning the words building or construction or

constructed, and which expressions are admittedly absent in the lease

deed Ex.P-10. I, therefore, cannot agree with the finding of the court

below on additional issue no. 8 that the word „covered‟ has to be read

as equal to construction or a building. The conclusion of the trial

court is completely illegal and perverse and is therefore set aside and it

is held that the lease deed Ex.P-10 is not for letting out a building or a

constructed area and when the same only states that the site is half

covered then this expression cannot be taken as being a premises i.e a

building under Section 2(i) of the DRC Act.

R.P. No. 364/2016 in RFA No. 163/1986 12 of 15

14. No doubt respondent possibly may not be estopped from

arguing against law by pleading that there is no estoppel against the

respondent because it is not as if the appellant has acted to his

detriment on the basis of withdrawal of the petition filed by the

respondent under Section 6 of the Act for fixation of standard rent

filed by the respondent, however it is seen that there were earlier

proceedings not only with respect to fixation of standard rent by the

respondent/tenant but also that there was an eviction petition filed by

the appellant/landlord/plaintiff and this petition was withdrawn in

terms of the order Ex.P-12 dated 10.8.1979 because the respondent

made a statement that what was let out was not premises. It is not

disputed before this Court by the respondent that a statement was

made by the respondent resulting in the order dated 10.8.1979, Ex.P-

12, that, the suit premises were not premises under the DRC Act for

the eviction petition under Section 14(1) of the DRC Act filed by the

present appellant/plaintiff to be maintainable. The said earlier eviction

petition which was withdrawn vide order dated 10.8.1979 Ex.P-12 was

Suit no. F-29/79. Therefore, in my opinion, the respondent is

R.P. No. 364/2016 in RFA No. 163/1986 13 of 15 estopped from contending that the suit premises are premises under

Section 2(i) of the DRC Act.

15.(i) Also, in my opinion, in law admissions made by the

respondent/tenant in the earlier two judicial proceedings before the Rent

Controller under the DRC Act, one being for fixation of standard rent

filed by the respondent and the other being for eviction filed by the

present appellant, would bind the respondent and the respondent cannot

be allowed to withdraw the said admissions because there is difference in

law between evidentiary admissions and judicial admissions. Whereas

evidentiary admissions can be explained away, admissions made under

the judicial proceedings ordinarily cannot be withdrawn or explained

away and such judicial admissions in themselves be the basis of a

judgment. This has been held by the Supreme Court in the case of

Nagindas Ramdas Vs. Dalpatram Ichharam alias Brijram & Others

(1974) 1 SCC 242, and the relevant para 27 of the said judgment reads as

under:-

"27. From a conspectus of the cases cited at the bar the principle that emerges is that if at the time of the passing of the decree, there was some material before the Court, on the basis of which the Court could be prima facie satisfied, about the existence of a statutory ground for eviction, it will be presumed that the Court was so satisfied and the decree for eviction apparently passed on the basis of a compromise, would be valid. Such material may take the shape either of evidence recorded or produced in the case or, it may partly or wholly be in the shape of an express or implied

R.P. No. 364/2016 in RFA No. 163/1986 14 of 15 admission made in the compromise agreement itself. Admissions if true and clear are by far the best proof of the facts admitted. Admissions in pleadings or judicial admission admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admission. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand evidentiary admissions which are receivable at the rival as evidence are by themselves not conclusive. They can be shown to be wrong." (underlining added)

(ii) Therefore, since the ratio of the judgment of the Supreme Court in

the case of Nagindas Ramdas (supra) squarely applies, even

independently on the issue of estoppel, respondent on the account of

admissions made in judicial proceedings, can be made liable by creating

rights in favour of the appellant that the suit premises are not premises

falling within Section 2(i) of the DRC Act.

16. In view of the aforesaid discussion, Ground „F‟ as

mentioned in the order of the Supreme Court dated 29.6.2016 is

answered by holding that the suit premises are not premises under

Section 2(i) of the DRC Act and therefore Civil Court has jurisdiction to

decide the subject suit for possession and mesne profits which was filed

by the appellant/plaintiff.

17. Review petition is accordingly disposed of.

AUGUST 09, 2017/ AK                                VALMIKI J. MEHTA, J



R.P. No. 364/2016 in RFA No. 163/1986                                       15 of 15