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Shiv Dutt Sharma Vs. Prem Kumar Bhatia - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 360 of 1968
Judge
Reported in5(1969)DLT394
ActsDelhi Rent Control Act, 1958 - Sections 14(6)
AppellantShiv Dutt Sharma
RespondentPrem Kumar Bhatia
Advocates: N.D. Bali and; R.K. Makhija, Advs
Cases ReferredCollector of Varanasi v. Gauri Shankar
Excerpt:
.....by virtue of the transfer itself. it does not, thereforee, apply where a person had acquired the premises by transfer before he had become the landlord for the first time when he let them out to a tenant. the underlying intention of section 14(6), was that a landlord, who is himself unable to evict a tenant for some reasons, should be deprived of the temptation of transferring the premises to another person who would nto be so prevented. accordingly sub-section (6) applies only when the premises are already in possession of a sitting tenant before its transfer to the new landlord, but nto when the latter lets out the premises to a tenant after the transfer in his favor. ; that an appeal under section 39 in the high court is governed by the normal procedure applicable to second appeals..........ground that a period of five years had nto expired after acquisition of the premises by prem kumar and, thereforee, the proceedings for eviction of shiv dutt premature in view of sub-section (6) of section 14. the rent controller upheld the preliminary objection and dismissed the application but the rent control tribunal reversed the finding of the rent controller and remanded the proceedings to the rent controller for trial on merits. hence this second appeal by shiv dutt.(2) prem kumar, respondent has raised the preliminary objection that this second appeal is barred by time mainly because the memorandum of appeal was nto accompanied by a certified copy of the order of the rent controller, which was filed after the expiry of the period of limitation. the appellant has nto.....
Judgment:

V.S. Deshpande, J.

(1) The appellant, Shiv Dutt Sharma is tenant of the respondent Prem Kumar, in quarter No. 1on the preliminary ground that a period of five years had nto expired after acquisition of the premises by Prem Kumar and, thereforee, the proceedings for eviction of Shiv Dutt premature in view of Sub-Section (6) of Section 14. The Rent Controller upheld the preliminary objection and dismissed the application but the Rent Control Tribunal reversed the finding of the Rent Controller and remanded the proceedings to the Rent Controller for trial on merits. Hence this second appeal by Shiv Dutt.

(2) Prem Kumar, respondent has raised the preliminary objection that this second appeal is barred by time mainly because the memorandum of appeal was nto accompanied by a certified copy of the order of the Rent Controller, which was filed after the expiry of the period of limitation. The appellant has nto made any application for the extension of period of limitation on the ground that there was sufficient cause for the delay within the meaning of the proviso to Section 39(1) of the Act.

(3) Two questions, thereforee, arise for determination in this appeal, viz. (1) whether the eviction proceedings taken by Prem Kumar against Shiv Datt before the Rent Controller are premature in view of Sub-section (6) of Section 14 of the Act and (2) whether the present appeal is barred by time.

(1)In considering the first question, it is necessary to read carefully sub-section (6) of Section 14, which is reproduced below : '14(6)where a landlord has acquired any premises by transfer, no application for the recovery of possession of such premises 'shall lie under sub-section (1) on the ground specified in clause (e) of the proviso thereto, unless a period of five years has elapsed from the date of the acquisition.'

(4) The crucial words in sub-section (6) of Section 14 are 'landlord' and 'premises', both of which have been defined in Sections 2(e) and 2(i) of the Act in the following terms:-

'2(E)'landlord' means a person who for the time being is receiving or is entitled to receive, the rent of any premises, whether on his own account or on account of or on behalf of, or for the benefit of, any other person or as a trustee, guardian or receiver for any other person or who would so receive the rent or be entitled to receive the rent if the premises were let to a tenant;'

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

(I)the garden, grounds and out-houses, 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 nto include a room in a hotel or lodging house.'

(5) The above definition of the word 'landlord' makes it clear that he must have the relationship of a landlord with an existing tenant before he can be called a landlord. A person is a landlord only viz-a-viz a tenant.ether his title to the premises is legally complete or not. As the definition of landlord under Section 2(e) does nto require that the landlord should be the legal owner of the premises, the acquisition of the premises by him by transfer within the meaning of sub-section (6) of Section 14 would include any acquisition by any transfer which ensures that the landlord is in possession of the premises and is able to induct .a tenant in them. It is not, thereforee, necessary that the transfer should legally valid inasmuch as it is nto necessary that the landlord must have a legal title to the premises. It would follow, thereforee, that Prem Kumar had acquired the premises by June, 1960, inasmuch as he was then in possession to induct a tenant in that premises. It is also clear that 744 in August 1960, Prem Kumar became the landlord of Shiv Datt when. the former leased the premises to the latter. The acquisition of the premises by transfer by Prem Kumar thus preceded the grant of tenancy by him to Shiv Datt. Prem Kumar was, thus nto a landlord within the meaning of Section 2(e) of the Act, when he acquired the premises by transfer. Sub-section (6) of section 14 applies only when the person acquiring the premises by transfer becomes a landlord thereof by virtue of the transfer. that is to say, when the premises are already in occupation of a sitting tenant. (B. K. Khanna vs. M. R. Batr-a(1). Prem Kumar did nto become the landlord of these premises by virtue of the acquisition of the premises by transfer. For, he had already acquired the premises by transfer before he became the landlord of these premises by letting them to Shiv Datt.

(6) If it is argued that the word 'landlord' in Sub-section (6) of Section 14 does nto require that he should have become a landlord of the premises by virtue of the acquisition of the premises, then according to this argument the word 'landlord' is nto used in sub-section (6) of Section 14 in the sense in which it is defined in Section 2(e). Strong reasons have to be given why the word 'landlord' should nto be construed in Section 14(6) as it is defined in Section 2(e). No such reasons are forthcoming. On the other hand, the very purpose of enacting Section 14(6) would be defeated if it is applied to a person merely because he has acquired the premises by transfer even though he did nto become the landlord thereof by virtue of such transfer. There is no reason why a person who has acquired the premises by transfer from somebody else, but who has let out the premises to a tenant after the acquisition by transfer, should be prevented from evicting the tenant for a period of five years. A person who has built the premises himself and then let them out would nto be restricted from evicting the tenant even within five years. This would means that the Act would treat these two classes of persons differently. If this meaning were given to Section 14(6), it would be open to the objection of being unconstitutional as being contrary to Article 14 of the Constitution. For, there is no valid reason why a person who buys the premises should be treated differently from a person who builds them in respect of their right to evict a tenant. Such a construction of Section 14(6) would not, thereforee, be permissible.

(7) The Legislative intention underlying Section 14(6) has been clearly explained nto only in the decision referred to above, but also in the Supreme Court decision in V. N. Sarin v. Maj. Ajit Kumar Poplai(2) Delhi Section. The intention was that a landlord who is himself unable to evict a tenant for some reason, should be deprived of the temptation of transferring the premises to another person who would nto be prevented. The Supreme Court of course, recognised that:

'IT is possible that this provision may, in some senses work hardship, because if a transfer is made by a landlord who could have proved this case under S. 14(1)(e), the transferee would be precluded from making a claim for the eviction of the tenant within five years even though he, in his turn, would also have proved his case under S. 14(1)(e). Apparently, the legislature thought that the possible mischief which may be caused to the tenants by transfers made by landlords to circumvent the provisions of S. 14(1)(e) required that an unqualified and absolute provision should be made as prescribed by S. 14(6). That, in our opinion, appears to be the object intended to be achieved by this provision and the policy underlying it.'

(8) But, this observation of the Supreme Court does nto mean that Section 14(6) should be made applicable to a person to let out the premises after he had already acquired them by transfer. This is made clear by the following observation of the Supreme Court later in the same decision :-

'IN regard to cases falling under section 16(6) a person who had no title to the premises and in that sense was a stranger becomes a landlord by virtue of transfer'.

(9) The Supreme Court has, thereforee, placed it beyond doubt that Section 14(6) applies only when a person becomes a landlord of the premises in question by virtue of the transfer itself. It does not, thereforee, apply to the present case inasmuch as Prem Kumar had acquired the premises by transfer before he became the landlord for the first time when he let the m out to Shiv Datt.

(10) The same conclusion follows from the definition of the word 'premises' in Section 2(i). 'Premises' mean a building which is or intended to be let. When Prem Kumar acquired these premises, they had nto been let. They were, thus nto 'premises' within the meaning of Section 14(6). Section 14(6) does nto apply unless at the time of the acquisition the building was 'premises'. The learned counsel for the appellant urges that the building was intended to be let when Prem Kumar was acquired them from Kimat Rai. There is absolutely no pleading or evidence of this record. In my view the words 'intended to be let' are used objectively to refer to a building which, though nto already let, is on the face of it and to all outward appearance to be let. For instance, a building which is built or made ready for letting is 'intended to be let'. There is nothing to show that these premises were built or made ready by the holder thereof for the purposes of letting. No doubt, there is a recital in the sale-deed by Kimat Rai in favor of Prem Kumar that he had permitted Prem Kumar to let out the house when he delivered possession to him earlier. But the words 'intended to be let' are nto used subjectively to refer to a building which the would be landlord in his own mind intends to let. The test of 'premises' is the fact of letting out or the nature or kind of the building which exists for being let out. The test is nto the state of mind of the would-be landlord. The grant of such permission is merely for the benefit of the transferee. It still leaves the transferee free to decide if he would let the building or not. There is nothing to show that at the time of the transfer in June, 1960, Prem Kumar had proclaimed to any other persons that the building was to let. The building was then nto 'premises'.

(11) My conclusion, thereforee, is that Section 14(6) did nto apply to the present case and the proceedings for eviction started by Prem Kumar against Shiv Datt were not, thereforee, premature.

(12) (2) The preliminary objection of the respondent that this appeal is time barred is also entitled to succeed. Under Section 39(1) of the Act, an appeal lies to the High Court from an order of the Rent Control Tribunal. The Act is silent as to what procedure the High Court is to follow in dealing with such an appeal. Under these circumstances, it is clear that the appeal is to be dealt with by the High Court acting as the High Court. The appeal in the High Court is, thereforee, governed by the normal procedure applicable to second appeals in the High Court. In Municipal Corporation of Delhi v. Kuldiplal Bhandari(3) decided on 9-12-1968 by a Full Bench of this Court I had occasion to refer to the decision of the House of Lords in National Telephone Company Ltd. v. Postmaster General(4), in which Viscount Heldane, L.C. observed at Page 552 as follows :-

'WHEN a question is stated to be referred to an established Court without more, it, in my opinion, imports that the ordinary incidents of the procedure of that Court are to attach.'

(13) This decision was cited with approval by the Supreme Court in Collector of Varanasi v. Gauri Shankar(5). The High Court in dealing with the Second Appeals under Section 39(1) of the Act must, thereforee, be held to act as a High Court in accordance with the procedure laid down in Order 42 read with Order 41 of the Code of Civil Procedure. By an amendment of Order 42 made by the Punjab High Court, adopted by this High Court, it is necessary that a certified copy of the order of the trial Court is filed along with the copy of the judgment appealed against with the memorandum of appeal in the High Court. In the absense of such a certified copy, the memorandum of appeal was nto properly filed. The deficiency nto having been remained within litation, the appeal itself was filed after the expiry of the period of limitation. The appellant has nto shown that he was prevented by sufficient cause from filing the appeal in time within the meaning of proviso to Section 39(1) of the Act. The appeal is, thereforee, barred by time. The certified copy of the Rent Control Tribunal's judgment was nto properly stamped when the memorandum of appeal was filed. The deficiency was made good later after the expiry of the limitation. Under Section 149 of the Code of Civil Procedure such delay could be condoned and I do so.

IN view of the above findings, the appeal is dismissed with costs.


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