Skip to content


Mohd. Yunis Vs. Kanhia Lal - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal Nos. 234 , 235 , 236 and 247 of 1969
Judge
Reported inILR1975Delhi243
ActsCode of Civil Procedure (CPC), 1908 - Order 41, Rule 1; Administration of Evacuee Property Act, 1950 - Sections 4(2)
AppellantMohd. Yunis
RespondentKanhia Lal
Advocates: S.S. Hussain and; G.N Aggarwal, Advs
Cases ReferredMr. Balo v. Mt. Koklan
Excerpt:
.....of the administration of evacuee property act, 1950, the evacuee property would not invoke the provisions of the rent control act even if the property remained acquired with the government - hence, the limitation as prescribed under section 12 of the delhi rent control act, would be started against the transferee from the date when the sale of property was made - - aggarwal, counsel appearing for the landlord has raised two preliminary objections, namely, (1) the certified copies of the order of the rent control tribunal as well as of the additional controller which have been filed in the present appeals had been obtained by mohd. !i1us only and they have been made use of by the other appellants as well. the requirement under these provisions is to file the certified copy of the..........dated 1st may, 1969, by which it has allowed the four applications of the landlord for fixation of standard rent and has fixed the various figures of rent for the appellants. the additional controller by order dated 26th august, 1968, had dismissed the said peli- lions on the ground of bar of limitation imposed by section 12 of the act.(2) the material facts of the case are that a large property bearing house no. 412, ward no. 9, chitii gate, delhi, was an evacueeproperty and was purchased by kanhia lal, respondent herein, for a sum of rs. 9,800 under a certificate of sale dated 16th march, 1966, which was effective from the date of purchase, viz. 26th november, 1965. the rent of the premises under the custodian was quite small and varied from rs. 5 to rs. 9.12 per month. the landlord on.....
Judgment:

(1) This Judgment will dispose of four appeals. Sao 234. 235 236 and 247 all of 1969. They ha.vc been filed by the various tenants occupying the respective premises in dispute. The J-e.spondent in all the appeals is the landlord, who is the owner of the property. The appeals have been filed under section 39 of the Delhi Rent Control Act, 1958 (hereinafter referred to as 'the Act). and are directed against the appellate order of the Rent Control Tribunal dated 1st May, 1969, by which it has allowed the four applications of the landlord for fixation of standard rent and has fixed the various figures of rent for the appellants. The Additional Controller by order dated 26th August, 1968, had dismissed the said peli- lions on the ground of bar of limitation imposed by section 12 of the Act.

(2) The material facts of the case are that a large property bearing House No. 412, Ward No. 9, Chitii Gate, Delhi, was an evacueeproperty and was purchased by Kanhia Lal, respondent herein, for a sum of Rs. 9,800 under a certificate of sale dated 16th March, 1966, which was effective from the date of purchase, viz. 26th November, 1965. The rent of the premises under the Custodian was quite small and varied from Rs. 5 to Rs. 9.12 per month. The landlord on 24th October, 1966, that is to say, within one year of the date of the purchase, instituted the petitions under section 9 of the Act for fixation of standard rent. The petitions were contested on various grounds including the bar of limitation. It was further pleaded by the tenant that they were old tenants of the respective premises under a Muslim evacuee landlord since 1943 and that the Act had allowed two years time to file petitions for fixation of standard rent from the date of the commencement of tenancy or commencement of the Act whichever was later. This plea prevailed with the Additional Controller, but the Rent Control Tribunal on appeal held that the Act for purposes of the present cases came into force only in March. 1966 when the property was sold to the landlord and not earlier and so the applications were not barred by lime. It, thereforee, allowed the petitions with costs and fixed the standard rent in the case of Mohd. Yuqms (appellant in Sao 234/69) at Rs. 10 and in other cases at Rs. 15 per month.

(3) Mr. G. N. Aggarwal, counsel appearing for the landlord has raised two preliminary objections, namely, (1) the certified copies of the order of the Rent Control Tribunal as well as of the Additional Controller which have been filed in the present appeals had been obtained by Mohd. Yi.!i1us only and they have been made use of by the other appellants as well. The second objection is that short orders passed by the Rent Control Tribunal in the various appeals had not been riled in this coi'rt and those orders had the force of the degree and so coi.ild not be dispensed with. Hence the appeals are not competent.

(4) I have heard the counsel for the parties. I do not find any force in the preliminary objections. There is no requirement of law that for purposes of appeal the certified copy filed must have been obtained by the appellant himself. It is sufficient compliance with the requirement of law that a certified copy of the impugned order is filed with the memorandum of appeal. The first appeal to the Rent Control Tribunal is preferred under section 38 of the Act and the form of appeal is prescribed by statutory rule 17 framed under the Act. Sub-rule (2) requires that every memorandum shall be accompanied by a copy of the order of the Controller appealed from and shall set. forth concisely and under distinct heads, the arounds of objection to order appealed from without any argument or narraiive. This provision is similar to Order 41 Rule I of the Code of Civil Procedure. It may be significant to mention that even for purposes of exelusion of time under section 12 of the Limitation Act, the time requisite for obtaining the copy of the judgment sought to be excluded is the one in respect of the copy which has actually been filed and not in respect of any other copy which may have previously been obtained.

THEsecond appeal to the High Court under section 39 of the Act is governed by the provisions of Order 42 read with Order 43 Rule- 2 of the Code of Civil Procedure. The requirement under these provisions is to file the certified copy of the impugned order of the lower appellate court as well as of the court of first instance. These provisions of law arc. thereforee, satisfied if any lcgal and valid certified copy of the impugned orders has been filed along with the memorandum of appeal. Whether a party in transferring the certified copy obtained by it to some some other person with or without consideration involved breach of anv rule or departmental instruction does not 'require any investigation at this stage. This question has no bearing on the maintainability of the present appeals. Mr. S. S. Hussain. counsel for he appellant, has suggested that Mohd. Yunus, who has obtained all the copies was a relation of the other three appellants and has acted bona fide for their benefit and he has not committed any illegality or irregularity in filing the said copies. In my view of the matter, I am unable to sustain the objection.

(6) In support of the second contention, Mr. Aggarwal has submitted that short orders in the appeals passed by the Rent Control Tribunal constituted decrees and their filing could not be dispensed with and so they should have been filed. In this submission, he relies on section 42 of the Act, which provides that an order made by the Controller (or an order passed on appeal under the Act) shall be executable by the Controller as a decree of a civil court and for this purpose, the Controller shall have all the powers of a civil court. These provisions of law by necessary implication show that the orders of the Controller or Tribunal are not decrees executable of their own vigour, but they are orders which are, by the force of section. 42 of the Act made executable as a decree of civil court. The word 'decree' is defined by sub-section (2) of Section 2 of the Code of Civil Procedure and clause (a) excludes from the purview a decree and adjudication from which an appeal lies as an appeal from order. Section 38 allows an appeal from orders of the Controller. Section 39 prescribes that an appeal shall lie to the High Court from an order made by the Tribunal (subject to the condition that the appeal involves some substantial questions of law). The provisions of the Act, thereforee, do not speak of the impugned orders as decrees or even deemed decrees. Rule 17(2) of the statutory rules again refers to the copies of the orders. The appeals to this court under the Act are, thereforee, appeals from orders of the Tribunal. The practice and procedure of the court in respect of appeals ordinarily coming up before it govern such appeals. The relevant provisions of law bearing on the subject, besides Section 39 are Rule 2 of Order 43 of the Code, which in its turn will attract the provisions of Order 42 and Rules I and 2 of Order 41. of the Code of Civil Procedure. It is, thereforee, essemtial that a certified copy of the order of the Tribunal as well as the order of the Controller must be filed along with the memorandum of second appeal in this court. But, it is not possible to accept the submission that the said orders are decrees, filing of which cannot be dispensed with. I may also point out that all the four cases giving rise to lie appeals were consolidated before the Additional Controller and were disposed of by a common order. The appeals before the Rent Control Tribunal were similarly disposed of by a common order. The filing of the certified copy of the long reasoned orders in each of the cases, thereforee, constituted sufficient and substantial compliance with the requirements of law and failure to file short orders docs not go to the root of the matter. The appeals are, thereforee, maintainable and the preliminary objection is rejected.

(7) Mr. Hussain, counsel for the appellant has reiterated before me the contention he had raised before the courts below, i.e. thc

'ANYlandlord or tenant may file an application to the Controller for fixing the standard rent of the premises or for determining the lawful increase of such rent,-

(A)in the case of any premises which were let, or in which the cause of action for lawful increase of rent arose, before the commencement of this Act, within two years from such commencement;

(B)in case of any premises let after the commencement of this Act,-

(I)Where the application is made by the landlord, within two years from the date on which the premises were let to the tenant against whom the application is made;

(II)where the application is made by the tenant, within two years from the date on which the premises were let to that tenant : and

(C)in the case of the premises in which the cause of action for lawful increase of rent arises after the commencement of this Act, within two years from the date on which the cause of action arises:

PROVIDED that the Controller may entertain the application after the expiry of the said period of two years, if he is satisfied that the applicant was prevented by sufficient cause from filing the application in time.'

(8) An analysis of the section shows that two years period has been prescribed for filing applications to the Controller for fixing standard rent at the instance of the landlord or the tenant and the same commences from the commencement of the Act, that is to say 9th February, 1959 in respect of previous lettings and in respect of subsequent lettings within two years from the date of such letting. There exists a proviso for condensation of delay on the ground of sufficient cause. Section 3 of the Act, however, lays down that nothing in the Act shall apply to any premises belonging to the Government or to any tenancy or other like relationship created by a grant from the Government in respect of the premises taken on lease, or requisitioned by the Government. To this section a proviso has been added with retrospective effect to the effect that where any premises belonging to Government have been or arc lawfully let by any person by virtue of an arrangement with the Government or otherwise, then notwithstanding any Judgment degree or order of any' court or other authority, the provisions of the Act shall apply to such tenancy. The result is that so long as the premises belong to the Government or the relationship of landlord and tenant existed qua the Government, the provisions of the Act cannot apply. But, if the premises are Jet out by some other person (under an arrangement with the Government), then the provisions of the Act would apply to a tenancy between such landlord and the tenant holding under him.

(9) The property in dispute was indisputably evacuee property. Section 4 of the Administration of Evacuee Property Act, 1950 provides that the provisions of the Act and the rules and orders framed there under shall take effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of such law. Sub-section (2) further clarifies that for the removal of doubts, it is declared that nothing in any other law controlling the rents of, or evictions from. any property shall apply, or be deemed to have applied to evacuee property. The effect of the said provisions is that while the property remained an evacuee property or had vested in the Central Government, it was exempt from the operation of the provisions of the Rent Control Act and neither the Custodian nor the Government as the landlord, nor the tenant holding under them, could file an application under section 9 of the Act for fixation of standard rent. So far as the Custodian is concerned, section 10 of the AdministratJon of Evacuee Property Act. authorised the Custodian to manage the property. This included Jetting out the property and cancelling the previous leases, if any according to the prescribed rules. Later on under section 12 of the Displaced persons (Compensation and Rehabilitation) Act, 44 of 1954, the evacuee properties were acquired by the Central Government and the right, title and interest of evacuees in those properties were extinguished and the evacuee property came to be absolutely vested in the Central Government free from encumbrances. The provisions of the Act and the statutory rules framed under it also gave power to the Managing Officer of the Central Government to manage the property and section 19 of the Act provides that notwithstanding anything contained in any contract or any other Jaw for the time being in force, but subject to any rules that may be made under this Act, the managing officer or managing corporation may cancel any allotment or terminate any lease or amend the terms of any lease or allotment under which any evacuee properly acquired under this Act is held or occupied by a person, whether such allotment or lease was granted before or after the commencement of this Act. The jurisdiction of courts in respect of the matters (where the specified autlioritics exercise power under the relevant law) was taken away by section 36 of the Act. This again makes it clear that while the property remained -acquired with the Central Government, it was not subject to the provisions of the Rent Control Act. The Managing Officer had the power to lease or allot the property or cancel the same. In the event of transfer of the property, such a person, if he was in its lawful possession would with effect from the dale of the transfer become a tenant of the transferee on the same terms and conditions as it had immediately before the transfer, subject to his fulfillling the conditions presented by section 29 of the said Act and Rules framed there under. It is then that for the first time the relationship of landlord and tenant arises between the tenant and the transferee of the property in view of section 29. This relationship is of course governed by the provisions of the Delhi Rent Control Act, but prior to the said date, the provisions of the Delhi Rent Control Act were not attracted. The certificate of sale dated 16th March, 1966 issued in favor of the respondent landlord is effective from 26th November. 1965. It is, thereforee with effect from the said date that the relationship of landlord and tenant has by operation of law arisen between the parties to the appeal and the limitation presecribed by section 12 of the Act will commence. The application for standard rent were filed by the respondent on 24th October, 1966, within the period of two years prescribed by section 12 of the Act and are, thereforee, within time.

(10) Mr. Hussain, counsel for the appellant, has lastly contended that the limitation once commenced against the previous Muslim landlord could not be arrested and on account of the change of the landlord, a new period of limitation would not commence. There is a fallacy in the submission. The Act came into force on 9th February. 1^59 and on that dale the properly was obviously vested, in the Goveminent and not in any private party, as a landlord. Rights of the evacuce landlord, if any, against the appellant did by operation of l:iw, stand suspended and inoperative in the hands of the Custodian or the Managing Officer. Moreover, any landlord (if he happened to be old landlord; would in terms of sub-section (1) of section 12 of the Act have two years time to file the petition for fixation of standard rent from the commencement of the Act, which would take the period lo 9th February, 1961, but the cause of action to the landlord did not arise on the commencement of the Act, since, he, in view of liie provisions of law, discussed above, did not have a right io file a petition for fixation of standard rent on that date and his statutory successor, the Custodian or Managing Officer, could not avail of thc provisions of Rent Act.

(11) Some light on the subject may be drawn from two decisions of the Privy Council. In Rameshwar Singh v. Momeswar Singh, Air 1921 P.C. 31, the Judicial Committee held that in order to make the provisions of the Limitation Act apply, the degree sought to be enforced must be in such a form as to render it capable, in the circumstances, of being enforced; Consequently, if the decree was such that it could not be executed, the period of limitation for executing the decree would naturally not commence and the execution applications cannot, thereforee, be held to be barred by limitation. The Judicial Committee in Mr. Balo v. Mt. Koklan , construed the provisions of Article 120 of the Limitation Act of 190S, which provided six years limitation for a suit from the date when the right to sue accrues. The Judicial Committee observed that there cannot be a right to sue until there is an accrual of the right asserted in the suit and its infringement or at least a clear and unequivocal threat to infringe that right by the defendant would commence to run. To the same effect is Annamalai Cflettiar and others v. A. M. K. C. T. Muthukaruppan Chettiar and another . where the rule of law laid down in Mt. Bolo's case was reaffirmed.

(12) Making use of the observations of the Privy Council in the aforesaid decisions, it appears to me that neither the respondent landlord nor his predecessor had any legal right to institute a petition for fixation of standard rent under section 9 of the Rent Act unless and until the property had been transferred to the respondent by certificate of sale with effect from 26th November, 1965. Consequently, the limitation prescribed by section 12 could not commence to run against the respondent until the said dale. As a result, I do not find any legal infirmity in the order of the Rent Control Tribunal and I affirm its finding that the petitions for fixation of standard rent filed by the respondent were not barred by limitation. These appeals must, thereforee, fail.

(13) So far as the fixation of standard rent on the merits of the case is concerned, the same has rightly been not assailed before me. The jurisdiction of this court in second appeal is confined to determining substantial questions of law and the fixation of the particular standard rent on the basis of material on record docs not involve any substantial question of law, which needs to be decided by this court. The appeals have no merits and are, thereforee, dismissed, but in the circumstances of the case, the parties arc left to bear their respective costs of the appeals


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //