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Sheel Utpal and ors. Vs. Hari Chand - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 122 of 1978
Judge
Reported inAIR1979Delhi197; 16(1979)DLT1; 1979RLR345
ActsDelhi Rent Control Act, 1958 - Sections 14 and 14(1); Transfer of Property Act, 1882 - Sections 106
AppellantSheel Utpal and ors.
RespondentHari Chand
Advocates: P.S. Mahendra and; G.L. Seth, Advs
Cases ReferredRamdayal v. Mali Devdiji
Excerpt:
.....to properly appreciate the subsquent events that had taken place in the case, namely, that the ground floor fell vacant and was sublet. (6) on the other hand, it appears to me that the landlord should have succeeded on the second ground as well. but in exceptional cases it is open to a court to take into consideration events which may have taken place subsequent to the filing of the action and grant relief on their basis where the relief as claimed originally may have become inappropriate by reason of altered circumstances and where this may appear to be necessary to shorten unnecessary litigation between the parties or tend to subserve the substantial interest of justice, vide ramdayal v. when the act says that acquisition (be it by construction, allotment or otherwise) of a..........kitchen, latrine, bath-room etc. the petitioner has been letting out one of his flats on the ground floor both before and after the institution of the eviction petition. an objection was also taken with regard to the validity of the notice. (2) the learned rent controller held that the tenancy had been terminated by service of a valid notice. he further held that the acquisition of the flat in janakpuri was only by one of the co-tenants and thereforee, it could not provide a sufficient ground for eviction against the remaining co-tenants. found that his children have now grown up. as a matter of fact, the landlord filed the petition after he had let out the ground floor portion which had fallen vacant before the institution of the present petition. he was, thereforee, of the view.....
Judgment:

M.L. Jain, J.

(1) Tenant Brij Mohan died on April 7, 1972? leaving behind the respondents, namely? his widow Sheel Utpal, and four sons, who succeeded to the tenancy rights. An eviction petition was filed on April 4, 1974, against them by their landlord Hari Chand under clauses (e) and (h) of sub-sec. (1) of sec. 14 of the Delhi Rent Control Act, 1958, (hereinafter the Act). It was alleged that the tenancy commenced on the 1st day of each calendar month and was terminated by a notice dated March 13, 1974. Brij Mohan was allotted after commencement of the Act a residential flat in Janakpuri by the Delhi Development Authority of which the respondents got a vacant possession in 1972. The petitioner also required the disputed premises for his own use and occupation and for the use and occupation of the members of his family dependent upon him. The petitioner was living on the Barsati with seven members who have by now grown up. He, thereforee, was is need of the first floor accommodation and did not own any other residential accommodation. The tenants contend that the Janakpuri flat had been allotted only to one of the respondents, namely, Mrs. Sheel Utpal, after the death of her husband, the original allottee. That too was let out long back without any objection from the landlord in 1972 itself and was no more available to them for occupation. The landlord was living on the second floor when he let out the premises in dispute to Brij Mohan. He has since then added two halls besides kitchen, latrine, bath-room etc. The petitioner has been letting out one of his flats on the ground floor both before and after the institution of the eviction petition. An objection was also taken with regard to the validity of the notice.

(2) The learned Rent Controller held that the tenancy had been terminated by service of a valid notice. He further held that the acquisition of the flat in Janakpuri was only by one of the co-tenants and thereforee, it could not provide a sufficient ground for eviction against the remaining co-tenants. found that his children have now grown up. As a matter of fact, the landlord filed the petition after he had let out the ground floor portion which had fallen vacant before the institution of the present petition. He was, thereforee, of the view that it was not correct to say that the landlord had no other reasonably suitable accommodation and dismissed the petition.

(3) Upon appeal, the learned Rent Control Tribunal upheld the finding that the ground under cl. (h) was not available upon the same reasoning as that of the learned Rent Controller. The learned Tribunal, however, allowed the landlord to succeed on the ground of bonafide personal requirment. The learned Tribunal staled that soon after the construction of the house in 1967, the landlord shifted to the top second floor while he let the ground floor and the first floor to different tenants because at that time his children were young and he coul manage with a Barsati, but now he felt the need for more accommodation for his growing family. He no doubt let out the portion of the ground floor before the filing of the first eviction petition inorder to have rental income on higher rent which he had a right to do. Even during the appeal, a portion of the ground floor had fallen vacant and the landlord let out the same at a higher rate. But, the flat on the ground floor did not suit the need of the landlord as he could not split up his family, some living on the ground floor and the others on the second floor. The first floor was, thereforee, more convenient to him as as it was the closest to the portion already in his possession. The desire on the part of the landlord to have more rental incoms in the circumstances of the case was not considered malafide. 'The opinion of the learned Tribunal was also influenced by the provision in sec. 19 of the Act that if the landlord did not occupy the premises in dispute for his own residence and let them out to earn more rent, th3 tenants wo aid have resovered possession. The appeal was allowed and the eviction decreed on December 20, 1977. Hence, this second appeal

(4) As a matter of fact, the findingfinding bonafide requirment and nonavailability of suitable accommodation are findings of fact and this court cannot interfere with those findings. The learned counsel for the appellant has, howe ver, urged that a substantial question of law has arisen in as much as the lower appellate Court failed to properly appreciate the subsquent events that had taken place in the case, namely, that the ground floor fell vacant and was sublet. If these facts were properly appreciated, the finding of bonafide requirment could have never been given. The petitioner had not come forward with a case in his petition that the first floor was more suitable to him. It was an afterthought. Even now, in June 1978 and July 1978, he has advertised for a tenant in respect of some portion which has fallen vacant in the ground floor. The landlord filed a wrong plan of the premises omitting some portion thereforem. He also did not disclose his status which was essential for deteraination of his need. Besides, the validity of the notices raises a question of law. On the other hand, the learned counsel for the respondent maintained that he should have been allowed to succeed also on the ground of acquisition of residential accomodation by the tenants.

(5) I have considered over the rival contentions. The findings regarding bonafide requirment and availability of other reasonably suitable accommodation to the landlord are findings of fact and it is not correct to say that the learned lower court has not taken into consideration the fact that ground floor portion fell vacant both before the filing of the petition and even when the petition was pending. But incite of this fact, the learned, lower appellate court took the view that the landlord was not bound to shift to the ground floor when the first floor was more convenient to him and h3 was entitled to ask for eviction. Even if he did not state in the petition that the first floor was more suitable, did not disclose his status or did not file a correct plan, and the court gave a finding in his favor, it still remained a finding of fact and involved no question of law. It cannot besaid that the finding was such as could not be arrived at by any court upon the record before it.

(6) On the other hand, it appears to me that the landlord should have succeeded on the second ground as well. That ground is '(b) that the tenant has, whether before or after the commencement of this Act, built, acquired vacant possession of, or been allotted, a residence,'. Brij Mohan was the tenant of the premises in dispute and a D.D.A. residential flat was allotted to him. When he died on April 7,1972, alibis survivors should have succeeded to the allotment, but it appears that for the sake of convenience the allotment was made in the name of his widow. The house was taken into possession on October 26, 1972, by her and was let out thereafter. It was thereforee a clear case of acquisition of vacant possession of residential accommodation after the commencement of the Act. The lessr had also filed an eviction petition some times after September 1973 but was withdrawn on March 12, 1974. The learned counsel for the appellants, however, invited my attention to a case of this court reported inGian Singh v. Turlok Singh 1975 R.L.R. 340, in which Avadh Behari, J., held that one of the three situations given in cl.(b) above 'must exist on the date of the application in order to furnish a cause of action to the landlord' and 'IF the tenant has no present right to the vacant residence on the date of the application then his ejectment cannot be ordered under this clause'. He construced the words 'has acquired vacant possession of a residence' or 'has been allotted a residence' to mean that the tenant has a present right to move into the premises, for a vacant residence whether built, allotted or acquired, is at his disposal. But in a Division Bench ruling of this court reported in Betto Ram v. Rameshwar Naih 1970 R.C.R, 532, his Lordship Deshpande, J., (now the Chief Justice) said that 'the scheme of the various provisos to section 14(1). is to not set the different causes of action which arise in favor of the landlord for filing an eviction petition against the tenant', and 'whether a causes of action must continue till the filing of the petition for eviction or till the order of eviction is passed', 'depends entirely on the individual nature of each cause of action'.

(7) Premitting myself a small digression? I am add that in Premlal v. Jadav Chand , a Division Bench of the Rajasthan High Court to which I was a party, took the view that it is the termination of tenancy and not the grounds of eviction which constitute the cause of saction for eviction. To that view I still subscribe because if that position were accepted, many of the problems would perhaps not have arisen. But for the present purpose, I shall proceed on the view accepted in our court that the various grounds in sec. 14(1) proviso also constitute various causes of action.

(8) I have turned in my mind over and again the rival views presented by the learned Judges with such an admirable erudition. It appears to me that if a cause of action has arisen and the party fails to obtain relief outside the court, it may bring an action at any time to the law of limitation. But an action must be tried in all its stages on the cause of action as existed on the date of its commencement and the relief claimed must be confined to matters existing at that date. But in exceptional cases it is open to a court to take into consideration events which may have taken place subsequent to the filing of the action and grant relief on their basis where the relief as claimed originally may have become inappropriate by reason of altered circumstances and where this may appear to be necessary to shorten unnecessary litigation between the parties or tend to subserve the substantial interest of justice, vide Ramdayal v. Mali Devdiji, . The cause of action for eviction thereforee must xist on the date of the applicat ion and also on the date of direction, But it is qually true that in order to determine whether the cause of action does so xist or not, one, has to examine its nature. To begin with, I may say that he verb 'has' in cl. (h) has not been placed there as a principal verb but only as an auxiliary followed by a past participle of a principal verb which determines the completed position or completed state of action denoted by the principal verb, here, (i) build, (ii) acquire, or (iii) allot. The cause of action will; thereforee, arise simultaneously once any one of the said three acts has taken place. This view is in consonare with other parts of the clause. Section 14(1) of the Act, while impofing a complete ban on eviction of tenants, has vested the Rent Controller with a discretion to direct eviction on grounds enumerated in the proviso. When the Act says that acquisition (be it by construction, allotment or otherwise) of a residence, whether such an acquisition has taken place at any time before or after the commencement of the Act, will be a ground for eviction, it clearly means to say that it is not necessary that such acquisition must continue to exist when the tenancy is being terminated or an application for eviction is made. The action can be founded even in an event which completed before the Act came into force. The significance of the words 'before or after the of this Act' in cl. (h) has got to be taken into account. It has further to be taken into account. It has further to be noted that cl. (h) does not in all cases insist that the tenant should have a vacant residence at his disposal when an application is made. In cases where he has built a residence or has been allotted a residence, a cause of eviction will arise as soon as these events occur. Where the residence thereafter remains occupied or unoccupied for a long or short interval is no part of consideration for the Controller to act This is quite an equitable proposition. If at any time during the tenancy, the tenant constructs a residence or gets vacant possession of a residence or receives an allotment of a residence, such a tenant cannot claim the statutory protection to continue to occupy the premises. The cause of action does not change because the residence which was at one time available to the tenant is no more available. The cause of action can be defeated only if the tenant is in a position to prove that he never built any residence, or acquired vacant premises or was allotted any residence, or that the landlord was estopped from exercising his right. I see no other way of termination of the cause of action except by way of eviction voluntarily. The cause of action is not the availability of vacant premises but a completed act or state. How can a completed act or state cease to be incomplete The fact thereforee, that on the date of the application, the tenant, for one reason or the other, had ceased to have or keep the residence vacant, will not disentitle the Controller to direct his eviction, save perhaps in those exceptional circumstances over which he had no control. The purpose is not to shift the tenant to the new residence but to evict him from the tenanted premises. He may either hive his premises cleared or may hire other premises; it is all for him to decide for himself. The law appears to extend protection to genuine tenants and to tenants who themselves are landlords earning high rents out of their acquisitions and denying the same to their Lessers. Here, it is not a question of balancing convenience or hardship but a question whether the protection has ceased to be available or not. Unless the law permits otherwise, protection once lost cannot be revived by the tenant. To hold otherwise would mean that a tenant can defeat the law by showing that at the commencement of the Act, he had no such residence or so soon as he gets the scent that eviction proceedings are imminant, by arrendaring pasession of or letting out the residence. That appears not permissible. It is possible that in some cases the landlord, if he unduly delays his action, may be defeated not because there exists no ground or cause of action but because he lacks bona fides or is barred by estoppel. As a matter of fact, in this case the landlord began to stir within a year of the possession obtained by the tenant. The respondent thereforee, had a right to obtain a direction for eviction. It is again wrong, at least in the facts of this case, to think that because the allotted premises stood mutated only in the name of one of the several inheritors, the remaining heirs cannot be said to have received the allotment. As a matter of fact, the allotment took place in the life-time of Brij Mohan and if he had then become liable to ejectment, his heirs do not inherit a better right than what the deceased had. I would, thereforee, uphold the impugned judgment on the second ground as well.

(9) There is no invalidity in the notices. They terminated the tenancy by the last day of the month and service was refused on March 16, 1974. which amounted to service and gave a clear fifteen days' statutory period to the tenants.

(10) Accordingly, I find no force in the contentions of the appellants an J dismiss this appeal. The teants shall, hovever, be allowed two months' time to vacate the premises. Costs shall be easy.


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