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Prem Raj Vs. Surat Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 529 of 1962
Judge
Reported in5(1969)DLT90
ActsDelhi and Ajmer Rent Control Act, 1952 - Sections 15
AppellantPrem Raj
RespondentSurat Singh and ors.
Advocates: D.D. Chawla and; G.N. Aggarwal, Advs
Cases ReferredIn Sagarbai v. Rattanlal
Excerpt:
.....under section 15 application for restoration of reconstructed building be filed within 1 year from date when possession delivered by tenant to landlord - procedure prescribed under section 15 to be followed if tenant seeks to claim relief - whether period prescribed under section 15 (3) can be extended or nto on showing sufficient cause - held, revision petition for restoration of possession liable to be dismissed. - - the question, however arises-is the present case similar ? according to the respondent's learned counsel, the tenant was aware of the demolition and knowing the facts fully well, he made an express statement that his application be dismissed. i am nto unaware of decisions which in execution proceedings construe orders like 'dhakhil dabthar' to amount to mere..........in his occupation on 15th september 1956 and his grievance which he desires to be redressed in the present proceedings is restoration of possession of the newly built shop. (3) this claim was contested by the landlord and the pleadings of the parties gave rise to four issues on merits, i am, however only concerned with issue no. 3 which deals with the plea of limitation. accord ing to the trial court, it is common case. of the parties that the specified date on which the tenant was to band over possession of the premises to the landlord was 15th september, 1956. the application out of which present the revision arises was made on 20th may 1958. according to section 15 of the aforesaid act, application for restoration of the reconsttucted building must be filed within one year from the.....
Judgment:

I.D. Dua, J.

(1) Shri Prem Raj has preferred this revision under section 35 of the Delhi Rent Control Act (No. 38 of 1952) against the order of a learned Subordinate Judge Its Class dated 20th April 1961 dismissing the present petitioner's application under section 15 of the aforesaid Act.

(2) It appears that in proceedings for ejectment against the present petitioner from the shop in question an eviction decree was made on 6th August, 1956 on the ground that the shop was required for re. building. The landlord undertook to restore back the possession of the shop in question. The shop to be restored was marked 'B' showa in the plan attached with the plaint in eviction proceedings. According to the present petitioner against whom order of eviction was made he delivered the possession o f the shop in his occupation on 15th September 1956 and his grievance which he desires to be redressed in the present proceedings is restoration of possession of the newly built shop.

(3) This claim was contested by the landlord and the pleadings of the parties gave rise to four issues on merits, I am, however only concerned with Issue No. 3 which deals with the plea of limitation. Accord ing to the trial Court, it is common case. of the parties that the specified date on which the tenant was to band over possession of the premises to the landlord was 15th September, 1956. The application out of which present the revision arises was made on 20th May 1958. According to Section 15 of the aforesaid Act, application for restoration of the reconsttucted building must be filed within one year from the date when possession is delivered by the tenant to the landlord. It appears that an application seeking similar relief was earlier moved by the applicant on 11th May, 1957 which was dismissed on 17th May, 1958 on the basis of a statement by the applicant's counsel. That statement was in the following terms:

'THEapplication be dismissed as the structure has been pulled down and new one is nto complete '

On behalf of the applicant , it was argued in the Court below that proceedings under Section 15 are in the nature of execution proceedings with the resalt that the tenant can approach the Court as many times as he likes until the relief is granted to him . This contention was repelled and the application was held to be barred by time, there being no provision for extending the period of limitation. It is this view which is being challenged in the present proceedings.

(4) Section 15 of the aforesaid Act may now usefully be reproduced ;

'RECOVERYof possession for repairs and rebuilding and re entry:- (1) The Court shall, when passing any decree or order on the grounds specified in clause (f) or clause (a) of the proviso to sub-section (1) of section 13. ascertain from the tenant whether elects to be pitted in occupation of the premises or part thereof from which he is to be evicted and if the tenant so elects, shall record the fact of the election in the decree or order and specify there in the date on or before which he shall deliver possession so as to enable the landlord to commence the work of the repairs or building or re-building as the case may be. (2) If the tenant delivers possession on or before the date specified in the decree or order, the landlord shall, on the completion of the work of repairs or building or re-building place the tenant in occupation of the premises or part thereof. (3) If, after the tenant has delivered possession on or before the date specified in the decree or order, the landlord fails to commence the work of repairs or building or rebuilding within one month of the specified date or fails to complete the work in a reasonable time or having completed the work, fails to place the tenant in occupation of the premises in accordance with sub-section (2), the Court may, on the application of the tenant made within one year from the specified date, order the landlord to place the tenant in occnpation of the premises or part there of on the original terms and conditions or to pay to such tenant such compensation as may be fixed by the court'.

(5) The procedure prescribed in this section has to be followed if the tenant seeks to claim relief there under. There is no right under the general law conferred on the tenant outside this section with the resalt that resort to the anology of execution proceedings governed by Order 21 of the Code of Civil Procedure would be misconceived. It has nto been argued before me and I express no opinion on the point as to whether or nto the period prescribed under sub-section (3) can be extended on showing sufficient cause. Shri D. D. Chawla the learned counsel for the applicant has, however, placed reliance on Vydtalinga Swamigal v. Karuppanna Goundan and tohers, where a purchaser apprehending obstruction from the defendant wanted time to take possession of the property with necessary police help. But the Court instead of posting the petition to some toher date for enabling him to get the necessary help dismissed the same. In these circumstances, the dismissal of the petition was held to be an order adjourning the petition fine die till the requisite steps were taken as desired by the purchaser. A subsequent petition was in these circumstances considered to be a continuation or reminder of the previous application for the purposes of limitation. Reliance was placed on an earlier Single Bench decision of the Madras High Court for this view. In Nalluru Ktoayya v. Kolli Narayana, it was observed that if an application for delivery of possession by the auction purchaser was closed without any default on the part of the party then that petition should be deemed to be pending. In Sagarbai v. Rattanlal, it was observed that for the application of the principle of revival it is necessary that there should have been a prior proceeding which may be sought to be continued or revived, but the mere fact that the prior proceeding has been sturck off for statistical purposes, or because the court is nto able to proceed with the matter at that stage, will nto prevent the application of this principle provided there has been no default or neglect of the party. The principle laid down in the decisions cited are unexceptionable and it may nto be easy to differ from them. The question, however arises-is the present case similar According to the respondent's learned counsel, the tenant was aware of the demolition and knowing the facts fully well, he made an express statement that his application be dismissed. To these circumstances, the rule of law laid down in the decisions cited would be inapplicable.

(6) It is undoubtedly true that the landlord has nto been fair and straight with the tenant and he tried to deprive the latter's lawful rights under section 15 of the above mentioned Act. But the tenant was highly ill-advised when he made the statement inviting dismissal of his application for recovery of possession. He could have either prayed for payment of compensation to be fixed by the Court or could have requested that the application be adjourned sine die to be revived later when the landlord rebuilt the property. The order of dismissal is explicit and based on a clear statement made by the tenant, it is extremely difficult for me to construe it to amount to an order indefinitely adjourning the case and leaving it to the tenant to have the application revlved later. I am nto unaware of decisions which in execution proceedings construe orders like 'dhakhil dabthar' to amount to mere adjournment of the case sine die, but reasons for that construction are inapplicable to the present ease. It is unfortunate that the Court dealing with the earlier application did nto itself realise the implication of the order dismissing the tenant's application and did nto determine the compensation to be paid to the tenant because of obvious default on the part of the landlord to re-build the shop in question. But then the blame primarily fies witb the tenant himself.

(7) Apart from what has been stated above, it is to be remembered that new more then ten years have passed since the default was committed by the landlord and by now nto only must the tenant have in all probability made arrangement for some toher shop for himself but all kthe three respondents have by now died and they are represented by their heirs and legal representatives. Some toher person would in all probability have became a tenant of the shop in dispute with the resuit that it is likely it is likely to create several complication if this Court were to intemere on revision with the impugned order and direct the respondents to put the petititioner in possession of the said shop Had the petitioner's light been clearly established I would, perhaps, have besitated in declining him relief on revision on the sole ground that it would embarass the landloid; but on the pecliliar facts and circumstances of this case, I do nto consider it to be just and equitable to interfere on revision at this point of time.

(8) Before concluding, it may be pointd out that Shri Gopal Narain. Advocate, had also filed a miscellaneons application (C. Mile. 922-J2 of 1968) for impleading the Zonal Manager, Northern Zonal Office of the Life Insurance Corporation of India, who has been appointed a Receiver of the mortpaged property. Shri D. D. Chawla, learned counsel for the petitioner, has, however, submitted that the receiver is nto a necesary party. But in view of the fact that this revision is being dismissed. I do nto consider it necessary to express any considered opinion on the said application, which has become infructuous.

(9) For all the foregoing reasons, this revision fails and is dismissed, but without any order as to costs.


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