Skip to content


Yashpal Malhotra Vs. S. Inderjit Singh - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 422 of 1974
Judge
Reported in12(1976)DLT53
ActsDelhi and Ajmer Rent Control Act, 1952 - Sections 13 and 35; Code of Civil Procedure (CPC), 1908 - Sections 115
AppellantYashpal Malhotra
RespondentS. Inderjit Singh
Advocates: Daljit Singh,; P. Bose and; Maehswar Dayal, Advs
Cases ReferredIn Shaik Jaffar Shaik Mahmood Ors v. Mohd Pasha Hakkani Saheb and Ors. Goswami
Excerpt:
.....is made final subject to revision under section 26 - not intention of legislature to make power of revision under section 26 wider than under section 115 - revisional power under section 26 limited in terms of section itself. - - man mal, wherein it was held that after the rent control act came into force a decree for recovery of possession could be passed by any court only if that court was satisfied that one or more of the grounds mentioned in section 13(1) were established. it does not seem reasonable for any one to contend that in a city like delhi the distance between friends colony and connaught place is too great as to be inconvenient. are clearly against the petitioner: l,50,000.00 .the tenant has not even proved himself to be a reliable witness: 26.notwithstanding anything..........judge (shri k.b. andley) who accepted the appeal preferred by inderjit singh s/o late bhagwan singh (landlord) against the judgment of the learned subordinate judge iind class (shri m.l. jain) in a suit filed by the landlord against the tenant for ejectment. since no second appeal lies against the judgment of shri kb. andley, the present revision petition has been filed under section 35 of the act. only the controversy in this civil revision petition may be noticed. (2) the suit for ejectment had been fileld by the landlord against the tenant in june 1974, the tenancy having commenced some time in 1953. the suit for eviction was based inter alias on the ground that the tenant had built his own house in friends colony (37, friends colony, new delhi) of which he was in possession and.....
Judgment:

S. Rangarajan, J.

(1) In this civil revision petition under section 35 of the Delhi and Ajmer Rent Control Act (38 of 1952) (hereinafter called the Act) which has been replaced by a later enactment, the petitioners Yashpal Malhotra s/o late Krishan Lal Malhotra (tenant) challenges the judgment of the Senior Subordinate Judge (Shri K.B. Andley) who accepted the appeal preferred by Inderjit Singh s/o late Bhagwan Singh (landlord) against the judgment of the learned Subordinate Judge IInd Class (Shri M.L. Jain) in a suit filed by the landlord against the tenant for ejectment. Since no second appeal lies against the judgment of Shri KB. Andley, the present revision petition has been filed under section 35 of the Act. Only the controversy in this civil revision petition may be noticed.

(2) The suit for ejectment had been fileld by the landlord against the tenant in June 1974, the tenancy having commenced some time in 1953. The suit for eviction was based inter alias on the ground that the tenant had built his own house in Friends Colony (37, Friends Colony, New Delhi) of which he was in possession and which had not been let out to any person. In fact the tenant through his counsel Shri R.B. Nanak Chand, had written to the landlord's Advocate Shri Ranjit Singh Narula (now Chief Justice Narula) on the 15th May 1954 in reply to the latter's notice dated 5th May, 1954 making the following specific admissions :

'MYclient (the tenant) built a bunglow in the Friends Colony long ago. It was completed in early 1952 and my client had been living in it up to September ]953. Finding his bunglow too big to maintain and too distant to live he rented the present premises from your client. It is correct (a mistake obviously for 'incorrect') that he has let out his bunglow. It is lying vacant since he left it.'

(3) When the landlord's suit was dismissed he filed an appeal which ended in a compromise on 1-5-1957. The compromise was that the tenant would vacate the demised property in favor of the landlord within three years from that date.

(4) On 11th June 1960 the tenant filed an objection petition before the first Court saying that the compromise decree was a nullity. When the objections wete rejected he filed an appeal which was accepted. As against the same the son of the landlord (Inderjit Singh) present respondent filed a civil revision No. 405-D of 1963 which was dismissed byB.C.Misra,J. who followed the decision of Hegde, J. speaking for the Supreme Court in Ferozi Lel v. Man Mal, wherein it was held that after the Rent Control Act came into force a decree for recovery of possession could be passed by any court only if that court was satisfied that one or more of the grounds mentioned in section 13(1) were established. The said ruling was sought to be distinguished before B.C. Misra, J. on the ground that in the present case the entire evidence had been recorded and that there was enough material before the appellate court to arrive at a conclusion one way or the other, an aspect which had not been specifically discussed in Ferozi Lal. B.C. Misra, J. however, did not uphold the above distinction, which had been pointed out. It may be noticed that on the indentical question there have been subsequent decisions of the Supreme Court expressing an opinion contrary to that expressed by Hedge, J. In K.K. Chari v. R.M. Seshadari a Bench consisting of I.D. Dua, C.A. Vaidhalingam and A. Alagiriswami, JJ., per Dua, J., held that an eviction decree passed on the basis of a compromise, really supported by the evidence adduced in that case concerning the bona fide requirement of the landlord, was neither void nor unexecutable. In a separate but concurring judgment Alagiriswami J. pointed out that though a compromise can be valid only if it is in accordance with the Act there was no objection whatever to a tenant submitting to an order for eviction or into a compromise when the landlord had specifically asked for possession on one or more grounds which had been mentioned in the said Act. The opinion, thereforee, was that an order for eviction could not be said to be a nullity merely because it was based on a compromise when there were other meterials to support it. There has also been a later decision of the Supreme Court in Nagiadas Ramdas v. Dalpatram Ichharam, Brijram & Ors., where Sarkaria. J, speaking for D.G. Palekar and V.R. Krishna Iyer JJ. also pointed out that even though an eviction order passed on the basis of a compromise it would be valid if it was supported by material which may take the shape either of evidence recorded or produced in the case, or it may be partly or wholly in the shape of an express or implied admission made in the agreement of compromise itself.

(5) Reference has been made to these aspects because the further relief which the present petitioner claims in this revision petition only follow the tenant having been permitted to question the validity of the order of eviction passed earlier which was passed on compromise and interference under Section 115 C.P.6. is in assence discretionary. The above observations would also bear upon the appreciation of the letter written by the tenant to the landlord referred to above wherein he had admitted that the house had been built by him (not his son as he now says) and that the same had not been let out. The above aspects are not outside the purview of a revisional court while considering the question whether interference in the exercise of revisional jurisdiction with the order passed by the court below is merited.

(6) Even apart from these considerations and quite independently of them there are no merits in the revision petition as the subsequent discussion will show.

(7) The ground on which the eviction has been ordered by the appellate court was one which is permissible under section 13(h) of the Act which reads thus:

'(H)that the tenant has, whether before or after the commencement of this Act, built, acquired vacant possession of, or been allotted a suitable residence;

The appellate court had come to the conclusion, as a fact, that the house in Friends Colony, which had not been let out at the time of the petition, was the property of the original tenant in the sense that it was built by him where he lived for a year and half. It is no doubt true that the tenant had also stated that he lived in the house for a period of one year and a half but he found it inconvenient as as being too big for him (though he was staying with his son) and that it was far away from Connaught Place. It does not seem reasonable for any one to contend that in a city like Delhi the distance between Friends Colony and Connaught Place is too great as to be inconvenient. This aspect pertains to appreciation and even if it were permissible for a court of revision to appreciate this aspect which it is net-it would not be able to differ from the lower appellate court in this regard. Nor am I able to find anything legally erroneous in the view which has been taken by the lower appellate court. There will be no scope at all for interference under section 35 of the Act if the decision from which the revisinn is preferred is according to law.

(8) Shri Daljit Singh, learned counsel for the petitioner relies upon a decision of P.S. Safeer, J. in Ved Prakash v. Chuni Lal, wherein a similar provision under section 13(h) in the new Act was considered. Shri Daljit Singh draws my attention to the fact that the expression 'suitable' has been dropped in the new Act, an expressions which is found in the old Act, namely, the one with which we are now concerned. But as I read the decision the above feature does not seem to make any difference in petitioner's favor because of the finding, which has been arrived at by the lower appellate court, as a question of fact, that the Friends Colony house was suitable to the tenant. On the question whether he should actually live there or not the following observations of Safeer, J. are clearly against the petitioner:

'ANorder of eviction can be passed against him if premises for his residence other than the tenancy premises are as a matter of right available to him'

The premises were available to the tenant, the same having been admitted not only in the aforesaid letter Ex. P 5/1 dated 5th May, 1954 but also in the answer (dated 21.7.1954)10 question put ain interlocutory application delivered to the effect, that the house was still vacant.

(9) In paragraph 5 of the written statement, which was filed on 24'5' 1954, however, the plea had been taken that the Frieds Colony house belonged to his son. There is no other support for this version except his bare oral testimony before the lower court on 8.5.1964. No account or other documentary evidence was furnished to show that he had made a mistaken or wrong admission earlier in the above said letter Exhibit P5/1.

(10) It may bee noticed that in paragraph 9 of the judgment of Shri M.L. Jain he had not referred to Ex. P 5/1 containing the admission of the tenant that he had built a house in Friends Colony. Without considering this relevant and very important admission of the tenant no proper finding on this issue could have been reached. There is no substance, thereforee, in Shri Daljit Singh reliance upon this finding of Shri M.L. Jain. On the other hand, the lower appellate court (Shri K.B. Andley) has discussed this question at length in paragraph 10 of its judgment and has placed considerable reliance on the above said letter. In my opinion, he did so correctly.

(11) Shri Daljit Singh, however, contended that the suitability of the said accommodation had not been admitted in the said letter by the tenant and that he had, on the other hand, stated that he had not found it suitable to him. 'Suitability' is not to be judged by reference to what the tenant alone could claim concerning it. It has to be determined by objective criteria. The mere fact that the tenant took the present house on rent from the landlord after living in Friends Colony for a year and half cannot by itself show that it was not suitable. This may be for a variety of reasons: it is by Do means inconsistent with the demised house having been more suitable. It is not to be presumed, without more to support it, that the house in Friends Colony was not suitable. The said house has not been shown to be unsuitable. In fact one should be slow to reach such a conclusion in view of the fact that the tenant had chosen to build a house at Friends Colony and at that cost, namely, Rs. l,50,000.00 . The tenant has not even proved himself to be a reliable witness: his subsequent statement, namely, that it is his son's house is seen to be contrary to his own earlier admission that he had built the house himself. His son was not examined as a witness in the proceeding. There is nothing, thereforee, to inspire confidence of the Court or incline it to accept the subjective judgment, averment of the tenant to find that the house was unsuitable.

(12) Shri Daljit singh contends that the tenant was not confronted with the above said letter. There is no substance at all in this contention. Reghubar Dayal, J. speaking for the Supreme Court in Bharat Singh and others v. Mst. Bhagirathi, held that admissions are substantive evidence by themselves and that there is no need to confront a party to a proceeding his own statement before such admission can be acted upon. It was also pointed out in that case that admissions by themselves cannot be conclusive. On this question there is the further aspect -a classic statement by the Judicial Committee in Chandra Kanwar v. Chaudhri Narpat Singh, that admissions become conclusive unless they are properly explained. It is obvious that the admission of the tenant in this respect, namely, that he had built a house himself not having been properly explained by his bare oral assertion to the contrary (that his son built the house) without any other material having placed before the Court in support of his latter assertion, coupled with the non-examination of his son and without letting him face cross-examination, has become conclusive against the tenant.

(13) Shri Daljit Singh also urges that in the matter of granting an order of eviction under section 13(h) of the Act acquisition of accommodation should have been made after the tenancy commenced but not b fore. As I read the plain words of the section there is nothing to support this contention.

(14) In Shaik Jaffar Shaik Mahmood Ors v. Mohd Pasha Hakkani Saheb and Ors. Goswami, J. speaking for himself and on behalf of the Bench consisting of V.R. Krishna lyer and A.C. Gupta, JJ. pointed out the difference between a revisional power and the appellate power. In that case what fell for consideration was section 26 of the Hyderabad Houses (Rent, Eviction and Lease) Control Act, 1954 which reads as follows:

'26.Notwithstanding anything contained in this Act or any other law for the time being in force, an application for revision shall lie to the High Court from any final order passed on appeal by an appellate authority on the following grounds : (a) that the original or appellate authority exercised a jurisdiction not vested in it by law, or (b) that the original or appellate authority failed to exercise a jurisdiction so vested, or (e) in following the procedure or passing the order, the orginal cr appellate authority acted illegally or with material irregularity.'

It may be noticed that sub-section (e) is concerned with the question of legality, that is what section 35 of the Delhi Act also provides.

(15) It was pointed out by Goswami, J. that a statute worded in the aforesaid manner is not wider than section 115 of the Civil Procedure Code The verbal difference, if any, between the two provisions was said to be without any distinction. Then followed the following observations :-

'INa series of decisions from the Privy Council days starting from the year 1894, Rajah Amir Hassan Khan's case, 1917 Balakrishna Udayar's case till recent times, as for example in Keshardeo Chamria's case and D.L.F. Housing & Construction Company's case, it is firmly well-established that section 115, Civil Procedure Code, 'applies to jurisdiction alone, the irregular exercise, or the nonexercise of it, or the illegal assumption of it'. The section is not directed against 'conclusions of law or fact in which the question of jurisdiction is not involved.'

The High Court under section 28(c) has to sec whether there is any error of jurisdiction committed by the Controller or by the appellate authority in passing the order or whether there is any such manifest error of procedure committed by the courts as may affect the ultimate decision resulting in gross injustice It is only in that context that under section 26(c) the words 'acted illegally' or 'with material irregularity' have been used. In view of the scheme of the Act that the inquiry contemplated before the original authority is of a summary nature (section 24), to be disposed of an expeditious manner (section 21), and the order of the appellate authority, which is vested with the power to make further inquiry, is made final subject to revision (section 25), it cannot be the intention of the Legislature in making the power of revision under section 26 wider than it is under section 115 of the Civil Procedure Code. The revisional power under section 26 is limited in terms of the section itself and is necessarily narrow. The High Court is, thereforee, not correct in its view that the power of revision under section 26 is of wider amplitude.'

(16) The Same is the position under the Delhi Act Also.

(17) This revision petition fails and is accordingly dismissed with costs.


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