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Om Parkash Vs. Roshan Lal Khanna - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 410 of 1968
Judge
Reported in5(1969)DLT210
ActsDelhi Rent Control Act - Sections 39; Transfer of Property Act - Sections 106
AppellantOm Parkash
RespondentRoshan Lal Khanna
Advocates: Vijay Kishan and; V.P. Chaudhary, Advs
Cases ReferredManujendra Dutt v. Purnedu Prasad Roy Chowdhwy
Excerpt:
.....to ntoe those decisions in deference to the exhaustive arguments addressed :(5) mst. the impugned order suffers from a substantial error inasmuch as it is nto possible on the facts and circumstances of this case to hold that the rent controller has applied his judicial mind to all the relevant considerations and to the recognised principle applicable to a case of amendment like the present......order under section 39 of the delhi rent control act directed against the order of the learned rent control tribunal dated 23rd july, 1968 dismissing the present appellant's appeal and maintaining the order of the learned rent controller dated 15th december, 1967, by means of which amendment of the written statement filed by the respondant in this court was allowed by introducing a plea of want of ntoice under section 106 of the transfer of property act. the order which is described by the appellant in this court to be arbitrary so far as relevant, reads thus :- 'i have heard the learned counsel for the parties. in my opinion, it would be quite just and expedient to allow the amendment in question on payment of costs amounting to rs. 25.00' (2) the appellant's learned counsel submits.....
Judgment:

I.D. Dua, J.

(1) This is a second appeal from order under section 39 of the Delhi Rent Control Act directed against the order of the learned Rent Control Tribunal dated 23rd July, 1968 dismissing the present appellant's appeal and maintaining the order of the learned Rent Controller dated 15th December, 1967, by means of which amendment of the written statement filed by the respondant in this Court was allowed by introducing a plea of want of ntoice under section 106 of the Transfer of Property Act. The order which is described by the appellant in this Court to be arbitrary so far as relevant, reads thus :-

'I have heard the learned counsel for the parties. In my opinion, it would be quite just and expedient to allow the amendment in question on payment of costs amounting to Rs. 25.00'

(2) The appellant's learned counsel submits that this order does nto show any reasons for exercising the discretion in favor of the respondent in the proceedings which started as far hack as May, 1964. It is common case of the parties that about six witnesses for the landlord were examined before the Controller when the application for amendment of the written statement was presented sometime in November, 1967. Shri Vijay Kishan has relied on, to begin with a decision of this Court in Pritam Singh v. Suraj Pershad. It was observed in that decision that the Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just and in the larger interests of justice, the Courts should as a general rule, permit amendments which may be necessary for determining the real question in controversy between the parties. Such power of amendment is recognised during proceedings under the Delhi Rent Control Act, It was emphasised in that decision that this power, however wide, is discretionary and the discretion is to be exercised on judicial principles. While dealing with section 106, Transfer of Property Act, it was observed that this section merely lays down a deeming provision in regard to duration of certain leases in the absence of contract or local usage and provides for their termination by ntoice for specified period to be served in the manner provided. This section, however, does nto exclude or prohibit toher means of terminating such leases, nor does it concern itself with the inherent jurisdiction of the Courts empowered to deal with eviction proceedings. Want of ntoice under this section was accordingly held nto to go to the inherent jurisdiction of the Courts or the Rent Controllers under the Delhi Rent Control Act. Reference has next been made to a decision of the Supreme Court in Santosh Kumar v . Bhai Mool Singh. Specific reliance has been placed on the following observations at p. 324 :-

'WEdo nto wish to throw doubt on those decisions which decide that ordinarily an appeal will nto be entertained against an exercise of discretion that has been exercised along sound judicial lines. But if the discretion is exercised arbitrarily, or is based on a misunder- stanting of the principles that govern its exercise, then interference is called turn if there has been a resultant failure of justice. As we have slid, the only ground given for concluding that the defense is nto bona fide is that the defendant did nto prove his assertions before he was allowed to put in his defense; and there is an obvious failure of justice if judgment is entered against a man who, if he is allowed to prove his case, cannto but succeed. Accordingly interference is called for here.'

(3) The next decision cited is Naresh Chandra Mital v. Bishamber Nath Chopra but this decision seems to be of little assistance and need nto detain me. He has also relied on some unreported decisions of this Court. In Bansi Dhar v. R. D. Bansal decided on 24th October, 1968, after reproducing section 106, Transfer of Property Act, it was observed as under :-

'THISsection lays down a rule of construction which is to be applied when there is no period agreed u]-on between the parties, and in such cases, the duration has to be determined by a reference to the object or purpose for which the tenancy is created. The rule of construction embodied in this section applies nto only to express leases of uncertain duration, but also to leases implied by law which may be inferred from possession and acceptance of rent and toher circumstances. It would thus appear that this section would raise the requisite presumption at the time when the lease starts ; in toher words, this section must be in force at the time of the commencement of the lease in order to incorporate the implied terms in the bilateral agreement giving rise thereto. It would thereforee, be somewhat doubtful to apply this section to those leases which were in existence before its enforcement, for variation of the terms of those leases after their enforcement, is nto easy to uphold on the plain reading of this section. Once a ccntractual lease is created, its terms, as intended by the parties, whether express or implied, must govern the relationship from the very inception of the agreement and in the absence of a clear statutory provision, a modification of those terms can nto be implied by a provision like section 106, Transfer of Property Act.'

In this connection, Shri Vijay Kishan has also drawn my attention to a recent Full Bench decision of the Punjab and Haryana High Court reported as Bhaiya Ra'm v. Mahavir Prashad. The conclusion of the Full Bench is recorded at pages 1041 and 1042 of the report. It is observed at p. 1042 that plea of want of ntoice under section 106 of the Transfer of Property Act is nto such that cannto be waived by a tenant and a tenant is entitled to waive the objection regarding non-issue of such a ntoice if he likes. Waiver is, however, a deliberate and conscious act as distinguished from estoppel which may be created by law. whether the objection has in fact been waived or nto in a particular case is a question on the direct and circumstantial evidence available in a given case. It is submitted that ali these various aspects should have been weighed by the learned Controller while deciding whether or nto it was a fit case in which discretion should have been exercised at such late stage of the proceedings when six witnesses had been actually examined in Court by the landlord and more than three years had elapsed after the initiation of eviction proceedings.

(4) On behalf of the respondent great stress has been laid on the submission that even though the order of the Controller does nto purport to show on the face of it its reasoning or the considerations which actually weighed with it in allowing amendment, nevertheless, this Court should, and is entitled to, go into the facts to see whether or nto the Rent Controller should have rightly allowed the amendment. As a matter of fact, the order of the Rent Control Tribunal on appeal has also been pressed into service for the purpose of supplementing the order of the Rent Controller and saying that the Rent Control Tribunal has held that the discretion was rightly exercised by the Controller and, thereforee, this Court should assume that the discretion has been rightly exercised. This submission is somewhat difficult to uphold. Discretion has to be exercised by the authority which is invested with the power and which purports to do so. Neither the Rent Control Tribunal nor this Court is entitled to substitute its own discretion, in regard to the matter requiring discretionary decision, for the discretion of the Rent Controller, nor would it ordinarily be permissible for the Rent Control Tribunal or for this Court to give its own reasons in support of the conclusion of the Rent Controller which has to be based on the latter's judicial discretion. It is axiomatic that the order by means of which a discretionary matter is decided, must disclose the working of the judicial mind so as to enable the superior Courts to scrutinise those orders on appeal or revision, if necessity to do so arises. If such an order merely records the Conclusion without disclosing reasons, it may well be suggestive of arbitrariness. When something is to be done within the discretion of a Court or a judicial Tribunal, then it has to be done according to the rules of reason and Justice and nto according to private opinion: in toher words, it has to be done according to law and nto humour: it must nto be arbitrary seemingly fanciful or devoid of reason, but legal and regular. The idea of discretion, which is to be exercised in a disciplined and responsible manner, postulates that the possessor of discretion must put his mind in the case and really use judgment in coming to a decision and nto approach the matter suggesting that his mind is already made up.' The decision relied upon by the learned counsel for the respondent do nto run counter to the view I have just expressed. They all proceed on their own facts. I would, however, like just to ntoe those decisions in deference to the exhaustive arguments addressed :-

(5) MST. Sardar Begum v. Jagdish Chand Bhandari, L. J. Leach & Co. v. Jardine Skinner & Co., Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil' Raj Kumar v. Harish Kumar Nrisingh Prasad Paul v. Steel Products Ltd. Amolakchand Mohanlal v. Firm of Sadhuram Tularam and Masireddi Suryanarayana v. Akula Anasuyamma.

(6) Now the question arises as to what order should be made on the facts and circumstances of this case. The impugned order suffers from a substantial error inasmuch as it is nto possible on the facts and circumstances of this case to hold that the Rent Controller has applied his judicial mind to all the relevant considerations and to the recognised principle applicable to a case of amendment like the present. The correct procedure to adopt in this case would, in my opinion, be to quash btoh the orders of the Rent Controller and of the Appellate Tribunal and send the case back to the Controller to exercise his judicial discretion in accordance with law and in the light of the observations made above. Quite a number of decision of this Court have since been given dealing with -the question of amendment in the matter of introducing a fresh plea of want of ntoice under section 106, Transfer of Property Act in proceedings for eviction under the Delhi Rent Control Act. In a recent Bench decision of this Court in Roop Narian Goela v. Smt.Krishna Devi Bagadia, the question whether the dicta of the Supreme Court decision in Manujendra Dutt v. Purnedu Prasad Roy Chowdhwy covered the proceedings under the Delhi Rent Control Act, was left open which would suggest that the question needs judicial determination.

(7) For the foregoing reasons, I allow this appeal, but without any order as to costs and direct the parties to appear before the Controller on 2nd December, 1968 when a short date would be given for further proceedings in accordance with law.

(8) I need hardly point out that these proceedings which have been pending since 1964 should be given priority and should be disposed of without undue delay.


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