Delhi High Court
Iqbal Singh vs Jagdish Prasad on 14 November, 2017
$~37
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 1284/2017
IQBAL SINGH ..... Petitioner
Through: Ms. Vasudha V. Indurkar, Advocate
Versus
JAGDISH PRASAD ..... Respondent
Through: None
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
ORDER
% 14.11.2017
CM No.41052/2017 (exemption)
1. Allowed subject to just exceptions.
2. The application is disposed of.
CM(M) 1284/2017 & CM No.41051/2017 (for stay)
3. This petition under Article 227 the Constitution of India impugns the
order [dated 5th July, 2017 in RCT No.52/2016 of the Court of District &
Sessions Judge, South District, Saket Court, New Delhi] of dismissal of the
appeal under Section 38 of the Delhi Rent Control Act, 1958 filed by the
petitioner against the order [dated 16th September, 2016 in E-6043/2016 of
the Court of Additional Rent Controller (South), Saket Courts, New Delhi]
finding the respondent to have made out a case under Section 14(1)(a) of the
Act against the petitioner.
4. I have, at the outset, enquired from the counsel for the petitioner,
whether the petitioner has been granted a benefit of Section 14(2) of the Act.
5. The counsel for the petitioner replies in the affirmative.
6. The counsel for the petitioner is arguing the matter as an appeal. The
counsel has been reminded that though the Rent Act vide Section 39 thereof
provided for the remedy of Second Appeal to this Court against the order of
the Rent Control Tribunal, albeit on a question of law only, but the said
Section 39, vide amendment to the Rent Act with effect from 1st December,
1988, has been deleted and the appeal from the order of the Rent Controller
to the Rent Control Tribunal under Section 38 of the Act which prior to the
said amendment was on facts as well as law, has been limited only on
questions of law. The legislature having deleted the provision for Second
Appeal, though a petition under Article 227 of the Constitution of India
would still lie against the order of the Rent Control Tribunal, but the same
cannot be substitute for a Second Appeal, provision wherefor has been
deleted. Thus, the ground for interference under Article 227 of the
Constitution of India has to be much more limited than the ground for
interference in an appeal. In a proceeding under Article 227 of the
Constitution of India, the evidence cannot be appreciated and re-appreciated
unless the findings reached by the courts below are found to be perverse,
that is, which no reasonable person on the basis of material on record could
have reached.
7. The counsel for the petitioner has then argued that the petitioner was a
tenant in the premises under one Devinder Singh and has been paying rent to
Devinder Singh even after the date when the respondent claims to have
acquired the property.
8. I have enquired from the counsel for the petitioner, whether the
petitioner, after institution of the petition for eviction from which this
petition arises, issued any letter to Devinder Singh informing him of the
claim made by the respondent adversely to the said Devinder Singh and
whether Devinder Singh has taken any action in pursuance to such notice, if
any issued.
9. The answer is in the negative and no action has been initiated by
Devinder Singh asserting his right, title and interest in the property.
10. The counsel for the petitioner however states that after Devinder
Singh stopped accepting the money orders towards rent sent by the
petitioner, the petitioner instituted a civil suit and in which suit, Devinder
Singh was proceeded against ex parte and the petitioner was permitted to
deposit the rent in the Court.
11. Supreme Court, in Atma Ram Vs. Shakuntala Rani (2005) 7 SCC
211, followed by this Court in Harish Ahuja Vs. S.P. Minocha 159 (2009)
DLT 551 has held that owing to Section 27 of the Rent Act, it is not open to
a tenant to file a civil suit to deposit rent as is claimed to have been filed and
such deposit if any is not to be treated as a valid payment of rent.
12. I have perused the order of the Additional Rent Controller and find
the Additional Rent Controller to have held, that the respondent in his
evidence had proved Agreement to Sell, General Power of Attorney, Will,
Affidavit, Special Power of Attorney, Receipt of Sale Consideration
executed by Devinder Singh in favour of the respondent and on the basis
thereof, the Additional Rent Controller has concluded the respondent to be
the landlord of the petitioner.
13. The counsel for the petitioner has argued that there is no sale deed
from Devinder Singh in favour of the respondent and the petitioner has
never attorned to the respondent as landlord.
14. Supreme Court, in Shanti Sharma vs. Ved Prabha (1987) 4 SCC 193
held that even for a petition for eviction under Section 14(1)(e) of the Act,
which requires the person filing the petition for eviction to be not only the
landlord but also the owner of the premises, absolute ownership is not
essential and a title better than that of the tenant suffices. Section 14(1)(a)
of the Act, under which the respondent filed the petition for eviction from
which this petition arises, does not even require the person filing the petition
to be the owner and what it requires is only the existence of relationship of
landlord and tenant. The same principle as held in Shanti Sharma (supra)
would apply and the respondent, if has a title better than the petitioner,
would become the landlord of the petitioner.
15. As far as the contention of the counsel for the petitioner of having not
attorned to the respondent as landlord is concerned, I have recently in
judgment dated 6th September, 2017 in RC REV. No.422/2017 titled Vijay
Sharma Vs. Namita Aggarawal on the basis of earlier judgments reiterated
that an act of attornment is not essential and attornment is under the law.
Though the same was held in the context of transfer of title but once transfer
of landlordship is the only requirement, the said principle would apply.
16. The next argument of the counsel for the petitioner is that the
respondent, prior to the filing of the petition for eviction from which this
petition arises, had filed an earlier petition for eviction against the petitioner,
also under Section 14(1)(a) of the Act and on the basis of a notice dated 10 th
May, 2000 and which petition for eviction was withdrawn; hence the second
petition, without liberty to file afresh, was not maintainable and was barred.
17. The said argument is again made without regard to law and facts. As
per the impugned judgments, the petition for eviction from which this
petition arises was premised on a notice dated 4th July, 2010 of demand of
rent and it has been held in M/s Moti Mahal Delux-II Vs. Kiran Dutta
(2015) 217 DLT 356 and Mirajuddin Vs. Mohammad Habib 2014 SCC
OnLine Del 3803 that the grounds of eviction specified under proviso to
Section 14 of the Act are recurring causes of action and merely because an
earlier petition was withdrawn would not bar the respondent from, by
issuing a fresh notice and file a fresh petition for eviction.
18. The only other argument is that the respondent knew of the Suit
aforesaid filed by the petitioner against Devinder Singh.
19. The same is not a material factor for the controversy.
20. There is no merit in this petition.
21. Dismissed.
RAJIV SAHAI ENDLAW, J
NOVEMBER 14, 2017
Pk..
