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Ganesh Flour Mills Vs. Ramesh Chand - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtDelhi High Court
Decided On
Case NumberSecond Appeal Nos 25 , 26 of 1979
Judge
Reported in16(1979)DLT87
ActsDelhi Rent Control Act, 1958 - Sections 14(1), 14(6) and 39
AppellantGanesh Flour Mills
RespondentRamesh Chand
Advocates: P.C. Khanna and; G.A. Aggarwal, Advs
Cases ReferredMohanlal Chunilal Kothari vs. Tribhovan Haribhai Tamboli and
Excerpt:
tenancy - eviction - sections 14 (1), 14 (6) and 39 of delhi rent control act, 1958 and section 18fa (4) of industrial development act, 1952 - petitioner company tenant of respondent - central government issued notification for take over of petitioner under section 18fa (4) - operation of all contracts and agreement got suspended during period of takeover - rent controller allowed eviction petition against petitioner during period of takeover - decision of rent controller challenged - suspension of remedy does not mean that eviction petition treated as nullity - proceedings before rent controller stayed but cannot be said null and void - petitioner have to vacate suit premises after completion of period of takeover. - .....in second appeal. (2) mr. khanna the learned counsel for the appellant had sought to challenge the partition decree by which the properly in dispute had fallen to the share of the respondent. he wanted to urge that the decree was obtained collusively only with a view to create a ground for eviction. a decree has been obtained from a competent court and the property in dispute has fallen to the share of the respondent. it is not for the tenant to challenge the partition decree obtained from a proper court. mr. khanna also wanted to urge that the partition decree was collusive and illegal because of the fact that the decree was not got registered. frankly i am unable to appreciate the point. a decree has been obtained from a court and it is not open to the appellant to seek to go behind.....
Judgment:

Rajinder Sachar, J.

(1) These are two appeals which would be disposed of by the same order as they arise out of a common order of Rent Control Tribunal. The appellant Company is a tenant of two partitions on the first floor of suit property. The respondent brought two applications for eviction on the ground of personal bonafide need. The Rent Controller allowed the eviction petition. In appeal the points urged before the Rent Control Tribunal was about the bonafide need and on the ground that the respondent was not the owner of the property in dispute. The Tribunal found that a partition has taken place in the family, with the result that the property in dispute had fallen to the share of the respondent. He also found that the respondent who was a practicing advocate had only three rooms available to him, which, keeping in view bids position and his family were not sufficient for his need. He, thereforee, affirmed the order of the Rent Controller and dismissed the appeals of the tenants who have now come up to this court in second appeal.

(2) Mr. Khanna the learned counsel for the appellant had sought to challenge the partition decree by which the properly in dispute had fallen to the share of the respondent. He wanted to urge that the decree was obtained collusively only with a view to create a ground for eviction. A decree has been obtained from a competent court and the property in dispute has fallen to the share of the respondent. It is not for the tenant to challenge the partition decree obtained from a proper court. Mr. Khanna also wanted to urge that the partition decree was collusive and illegal because of the fact that the decree was not got registered. Frankly I am unable to appreciate the point. A decree has been obtained from a court and it is not open to the appellant to seek to go behind the decree and say that it was not a properly obtained decree. Collusiveness of the decree cannot be challenged in this collateral manner. The proper court has given a decree by which the respondent has got this house to his share. Whether that decree has been registered or not or whether it requires registration are irrelevant points in these proceedings. I may mention that though the certified copy was produced in the court below, no objection as to its non-registration was urged by the appellant before the courts below. As a matter of fact no grievance on any such ground has been taken before this court. This plea fails. Much argument has raised before me on the ground that the bonafide need of the respondent was not proved. It may however, be noted that this grouad as such was not seriously urged below because the Tribunal has noted that the only ground on which the judgment of the Rent Controller was challenged was that the partition allegedly effected between the respondents' family was brought into existance with a view to create a ground against the eviction of the appellant. The ground or the argument that there was existing sufficiency of accommodation with the respondent had hence he did uoi require the premises in dispute as such was not seriously urged before the Tribunal. That apart the tribunal has referred to the fact that there is one big room and two rooms on the ground floor which has fallen to the share of the respondent. He has noticed that the respondent is a practicing advocate and his family consists of himself, his wife and his son who was then 13 years and his mother. Both the Rent Controller and the Rent Control Tribunal have come to the finding of fact that the existing accommodation with the respondent is not sufficient. Mr. Khanna has made a serious argument about the sufficiency of accommodation and sought to dissect the requirement of respondent into little bits of pieces. But the finding of bonafide need having given by courts below, being one of fact is immune from challenge in second appeal before this court. It is not shown that any wrong principles of law have been applied in coming to decision of bonafide need and there is no scope for interfering with this finding.

(3) Mr. Khanna has also sought to raise the point that there was no locus standior respondent to bring the application. The argument being that five years have not elapsed since the respondent has become owner as required by S. 14(6) of the Rent Act. Now this point was never taken by the appellant in the courts below. No pleading being there the question of evidence could not arise. The only ground urged was that it was Smt. Tribeni Devi who was the owner and not the respondent. That plea was sufficiently met by the respondent by proving the partition decree by which the respondent has got the share of the joint family property i.e. the suit property in this case. If the appellant wished to raise the point of locus standi to maintain an application for eviction it was incumbent on him to raise this point specifically because this a matter of evidence and evidently the plea which relates to a question of fact cannot be allowed to be raised in second appeal. Prima facie as the decree says there was a partition of joint family property the argument also will be without merit because it cannot be disputed that a partition of joint family property does not amount to transfer or acquisition property, and in that situation the bar under section 14(6) of the Act would not be applicable to the present case.

(4) The only serious contention urged by Mr. Khanna was that it was not permissible in law to proceed under the Rent Act against the appellant. Now order was passed by the Central Government under sub-section (1) of Section 18AA of the Industries (Development and Regulations) Act 1951 (hereinafter to be called the Act) of 1951 taking over the management of the appellant undertaking. On 27-1l-1972 a fiirther order was passed by the Central Government in exercise of powers under sub-section (1) of Section 18FB of the Act of 1951 declaring that the operation of all contracts, assurances of property, agreements, settlements,.........to which the said undertaking is a party or which may be applicable to it immediately before the date of publication of this order in the Official Gazette, and all the rights, privileges' obligations and liabilities accruing or arising there under before the said date shall remain suspended. The said order was to remain in force for one year. It is common case that the said order was continued year after year till 26th of November, 1977. It is not disputed that thereafter no order was passed under sub-section (1) of Section 18FB. Thus the notified order issued under Section 18FB(1) ceased to be in force subsequent to 26.11.1977. I may mention that the eviction order was passed by the Rent Controller on 27.3.1978 and the appeal of the tenant was dismissed by the Rent Control Tribunal on 12.1.1979. Mr Khanna urges that the operation of the rights and obligations has been suspended, the remedy is also suspended during the said period by virtue of sub-section (4) of Section 18FB and the respondent cannot thereforee exercise his right of seeking eviction against the appellants.

(5) It is important to mention that in the notified order issued under Section 18FB enactments which were not to apply to the Industrial undertaking did not include the Delhi Rent Control Act. Mr. Khanna never the less would have it that the case is covered by the Clause (b) of the notification by which the operation of contracts, agreements etc. was suspended. I am doubtful whether lease deed would be covered by the items agreements or the contracts etc. the operation of which had been suspended. Even however, assuming that lease deeds would becovered by the notified order it will not avail the appellants. The reason is that the effect of notified order is to suspend operation of agreement during its currency. Now the notified order no longer existed after 26.11.1977, and ceased to have effect after that date. In terms of sub-section (4) of Section 18FB any remedy for the enforcement of any right, privilege, obligation, or liability so remaining suspended by notified order shall become revived and enforceable as if the notified order has never been made. The result would be that the application for eviction which had been filed in 1975 though could not have resulted in the order of eviction so long as the notified order was continuing, it would not debar the Rent Controller from proceeding with the matter after the notified order was no longer in force. Mr. Khanna however, suggested that the fact of suspension is that any proceedings instituted were null and void and the appellant had to file fresh application for eviction after the notified order had ceased to exist. I do not agree. Even the pending proceedings do not have to be dismissed during the currency of notified order and the only effect is that they remain stayed. The suspension of remedy does not mean that the eviction application is to be treated as nullity and as never having been filed. The eviction application was filed in 1975 and after 26.11.1975 the notified order ceased to have effect it was to be treated as if the order had never. been made, and the legal fiction must be taken to its logical conclusion, the inevitable conclusion is that after 2.l 1.1977, there was no bar in dealing with eviction application. The order of eviction was passed subsequently on 27th March, 1978, and at that time obviously there was no bar to passing such an order. In considering the competence of the court to pass an order the relevant point of time is the date of judgment, because as held in : [1963]2SCR707 Mohanlal Chunilal Kothari vs. Tribhovan Haribhai Tamboli and others, the court is bound to apply the law as it found on the date of judgment. The appellant cannot thereforee take advantage of the notified order because in law it is as if it never had been made, and obviously such a non-existance order could not be pleaded as a defense at the time of passing of eviction order in 1978. The result is that the appeals are dismissed with costs. The appellants are however, given one month's time to vacate the premises.


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