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Lila Wanti Vs. C.P. Prabhakar - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberContempt Civil Petition (Reference) Appeal No. 46 of 1978
Judge
Reported in17(1980)DLT259; 1980RLR465
ActsDelhi Rent Control Act, 1958 - Sections 21 and 61; Contempt of Court Act, 1971 - Sections 2 and 12(1)
AppellantLila Wanti
RespondentC.P. Prabhakar
Advocates: Y.K. Sabharwal and; G.R. Chopra, Advs
Cases ReferredIn Shantilal Makanji Kalyanji Shah v. Ranchoddas Girdhardas
Excerpt:
.....with it the power to decide rightly or wrongly. after having enjoyed the benefit of remaining in possession of the premises for a period of more than a year it is not understand able how he can be allowed to approbate and reprobate. up to may 31, 1976. however, it is to be borne in mind that para 2 clearly mentions the word 'premises no. it is urged that, at the highest, it is a case where a decree for eviction was passed against the tenant who failed to vacate and is holding over. besides tentamounting to gross flouting of the order of the court based on solemn undertaking, it clearly smacks of disrespect and disregard to the court. prabhakar undertook to deliver vacant possession of the premises to the landlady on or before may 31)1978. he failed to do so. he failed to do so. he..........c.p. prabhakar made an application under section 21 of the delhi rent control act) 1958 to the rent controller, delhi. it came up before shri k.b. andley, additional rent controller delhi, on june 3, 1971. mohan lal gulati swore that the premises were not required by the landlady for a period of 5 years and the wanted to create limited tenancy for a period of 5 years and that she would require the premises for her personal need on the expiry of that period. c.p. prabhakar endorsed the request made on behalf of the landlady saying that he required the premises for residence and would have no objection to vacate the same on the expiry of the stipulated period. shri k.b. andley granted permission for creation of the limited tenancy vide order dated june 3, 1971 by relying upon the.....
Judgment:

O.N. Vohra, J.

(1) This is a reference under Section 10 read with Section 11 and 12 of the Contempt of Courts Act, 1971 hereinafter referred to as 'the Act' by Rent Control Tribunal, Delhi.

(2) Briefly, the facts are that Lilawati, owner-landlady of house bearing No. F-8, Rajauri Garden) New Delhi, acting through Mohan Lal Gulati, General Attorney, in collaboration with C.P. Prabhakar made an application under Section 21 of the Delhi Rent Control Act) 1958 to the Rent Controller, Delhi. It came up before Shri K.B. Andley, Additional Rent Controller Delhi, on June 3, 1971. Mohan Lal Gulati swore that the premises were not required by the landlady for a period of 5 years and the wanted to create limited tenancy for a period of 5 years and that she would require the premises for her personal need on the expiry of that period. C.P. Prabhakar endorsed the request made on behalf of the landlady saying that he required the premises for residence and would have no objection to vacate the same on the expiry of the stipulated period. Shri K.B. Andley granted permission for creation of the limited tenancy vide order dated June 3, 1971 by relying upon the statements one made on behalf of the landlady and the other by the would be tenant.

(3) On November 30, 1976 Lilawati prayed for issuance of warrant for possession of the premises saying that the limited tenancy had come to an end. Notice was issued to C.P. Prabhakar. In his reply dated January 29, 1977, it was pleaded by C.P. Prabhakar that the premises were never let exclusively for residence and that the tenancy had come into existence prior to the grant of permission under Section 21 of the Act and, thereforee, the order passed under that Section which was relied upon, could be of no assistance as it was an order without jurisdiction. Shri S.N.Kapur) First Additional Re:it Controller, Delhi, finding no force in these objections, dismissed the same vide order dated April 26, 1977. Feeling aggrieved, C.P.Prabhakar went up in appeal under Section 38 of the Delhi Rent Control Act before the Rent Control Tribunal. The appeal was provisionally admitted subject to- the filing of the certified copy of the impugned order within the time prescribed on May 3, 1977 and notice was issued to Lilawati for May 5, 1977. On the date fixed, C.P. Prabhakar made statement withdrawing the appeal in these words:

'I accept the order passed by the Additional Controller as correct. However, I pray for time up to 31.5.1978 (Thirty-first May, Nineteen Hundred and Seventy eight) to surrender vacant possession of the demised premises to the respondent and I give solemn undertaking to the Court that I will deliver vacant possession of the demised premises to the respondent positively by or before 31 .5.1978 and I will continue paying future damages regularly month by month.'

Smt. Lilawati stated that she had no objection to time being allowed to surrender vacant possession of the premises as prayed in view of the solemn undertaking which had been given. The Rent Control Tribunal by acting upon the statements made by the parties and their counsel dismissed the appeal and allowed time to surrender vacant possession by or before May 31, 1978 as per as the undertaking given by C.P. Prabhakar.

(4) G.P. Prabhakar did not abide by the aforesaid undertaking with the result that Lilawati felt constrained to approach the Rent Control Tribunal with her application dated June 2, 1978 complaining that G.P. Prabhakar had disobeyed the order dated May 5, 1977 and had committed contempt of Court and praying that the orders for detaining C.P. Prabhakar in civil prison may be passed and that possession may be got delivered to her. In his reply to the show-cause notice, G.P. Prabhakar admitted that he had not given vacant possession of the premises to Lilawati but endeavored to justify his act by raising the plea that Hans Raj Prabhakar Education Society was running a school in the premises since the creation of the tenancy and as such he was not in a position to give vacant possession of the premises to Lilawati. He went further and challenged the very order passed under Section 21 of the Delhi Rent Control Act and stated that the said Society had filed a civil suit claiming tenancy in its favor and had obtained an order restraining Lilawati from evicting it from the premises.

(5) The Rent Control Tribunal took the view that at the time C.P. Prabhakar had given solemn undertaking to vacate the premises by the date of his choise, he never disclosed that he was not in actual possession of the premises and had thus not only misled the landlady but also the Court and hat it appeared that due to manipulation some society had been put forward as a new claimant to the tenancy rights but such a move could not absolve C.P. Prabhakar of his legal obligation which arose out of the solemn undertaking which he had given to the Court when he withdraw the appeal and got further time for vacating the premises. He further took the view that C..P. Prabhakar appeared to have committed gross breach of the solemn undertaking given to the Court and thus was guilty of the contempt of Court.

(6) The principal contention advanced by Shri G.R. Chopra, learned counsel for C.P. Prabhakar, is that an order or a decree passed by a Court having no jurisdiction is a nullity in law and inasmuch as letting of the premises in respect of which permission to let under Section 21 of the Delhi Rent Control Act was sought was for residential-cum-commercial purpose, namely, running of school, the permission under Section 21 of the Delhi Rent Control Act was not only illegal but also without jurisdiction and, thereforee, the party giving the undertaking cannot be made answerable under the contempt of Courts Act. The precise argument is that if the order in respect of which undertaking was given is a nullity, no rights accrue and, thereforee, no contempt, as the very basis of the proceedings is non-existent. It would be seen that it is an undisputed fact that the premises which were the subject matter of limited tenancy are residential. The submissions made on behalf of the landlady and G.P. Prabhakar himself manifestly show that the landlady did not require the premises for personal use for particular period and that the tenant confirmed that the purpose of the tenancy for which the premises were to be used was residential. That being so, by acting on the statements made before him, the Additional Rent Controller granted permission for/creating tenancy for a limited period. All this was done wholly in conformity with the provisions of Section 21 of the Delhi Rent Control Act which says:

'21. Recovery of possession in case of tenants for limited period : Where a landlord does not require the whole or any part of any premises for a particular period and the landlord, after obtaining the permission of the Controller in the prescribed manner, lets the whole of the premises or part thereof as a residence for such period as may be agreed to in writing between the landlord and tenant and the tenant does not, on the expiry of the said period, vacate such premises, then, notwithstanding anything contained in Section 14 or any other law the Controller may, on an application made to him in this behalf by the landlord within such time rs may be prescribed place the landlord in vacant possession of the premises or part thereof by evicting the tenant and other person who may be in occupation of such premises.'

(7) It is pointed out by the learned counsel that in the application dated June 2, 1971 under Section 21 of the Delhi Rent Control Act, it was mentioned in para 3 (i) that the premises would be occupied for the purpose of residence-cum-school which would unmistakably show that the permission was sought for a purpose which was not only beyond the scope of Section 21 but also inconsistent therewith. There would have been some force in this argument had the matter rested there but this is not the case. The Additional Rent Controller was required to apply his judicial mind to the facts of the case before granting the permission sought for. Accordingly, he recorded the statements of the general attorney of the landlady and would be tenant. The fact that both of them categorically stated that the proposed tenancy was for purpose of residence would lead to the only conclusion that what had earlier been mentioned as the purpose was revised on advice and the parties agreed to letting for the purpose of residence. By no stretch of reasoning the order dated June 3,1971 can, thereforee, be said to be an order without jurisdiction. Jurisdiction means authority to adjudicate a matter. It is well established that jurisdiction does not depend upon the regularity of the exercise of that power or the correctness of the decision pronounced, because the power to hear and determine necessarily carried with it the power to decide rightly or wrongly. There are three important facts of jurisdiction and these are-(1) territorial (2) pecuniary and (3) in regard to subjectmatter. No consideration of lack of pecuniairy or territorial jurisdiction arises here when the premises are situated at Delhi and the Additional Rent Controller had jurisdiction throughout Delhi. The subject matter of the application is a house in regard to which Limited tenancy could be created in accordance with the permission given by the Rent Controller. Had it been that permission for creation of tenancy in respect of residential premises was sought for a purpose other than residential, the order granting permission would have been an illegal order which could be challenged in execution or otherwise.

(8) It would also be seen that C.P. Prabhakar preferred an appeal before the Rent Control Tribunal against the order of the First Additional Rent Controller dismissing the objections but withdraw the same staling that he admitted the judgment of the First Additional Rent Controller as correct. Simultaneously, he prayed for grant of time for vacating the premises and gave solemn undertaking that he would surrender vacant possession of the premises to the landlady without demur thereafter, by acting upon this undertaking given to Court C.P. Prabhakar was allowed time up to May 31, 1978. Still another undertaking that was given was that he would make payment of damages for use and occupation from month to month for the period he remained in possession. Neither vacant possession was delivered nor any amount on account of use and occupation of the premises was tendered or paid. After having enjoyed the benefit of remaining in possession of the premises for a period of more than a year it is not understand able how he can be allowed to approbate and reprobate. In regard to this principle it has been observed in Halsbury's Laws of Englands Fourth Edn., Vol. 16, page 1012 :

'ON the principle that a person may not approbate and reprobate, a species of estoppel has arisen which seems to be intermediate between estoppel by record and estoppel in pais. The principle that a person may not approbate and reprobate expresses two propositions, (ii), that the person in question, having a choice between two courses. of conduct, is to be treated as having made an election from which he cannot resile, and (2), that he will not be regarded, in general at any rate, as having so elected unless he has taken a benefit under or arising out of the course of the conduct which he has first pursued and with which his subsequent conduct is inconsistent.'

(9) This consideration apart, it is all the more un-understandable how a tenant can be allowed to assert that the order allowing permissing for creation of limited tenancy is an illegal order in an ancillary proceeding basis whereof is an undertaking given to Court and willful violation there of. Section 2(b) of the Act defines 'civil contempt' to mean 'willful disobedience of any judgment, decree, direction, order writ or other process of a Court or willful breach of an undertaking given to a Court'. The term 'willful' simply' means intentional or deliberate and it is not necessary that the conduct of the person charged should be contumacious. In Halsbury's Laws of England Fourth Edn. vol. 9, page 42, the law is stated in these words :

'AN undertaking given to the Court by a person or corporation in pending proceedings, on the faith of which the Court sanctions particular course of action or inaction, has the same force as an injunction made by the Court and a breach of the undertaking is misconduct amounting to contempt.'

(10) The next submission of Shri Chopra is that in this case the tenancy came into existence prior to the grant of permission under Section 21 by the Additional Rent Controller, and, thereforee, the permission is non est and cannot form proper foundation for proceedings for contempt. This submission is equally devoid of force. It is true that the application under Section 21 was presented on June 2, 1971 and it came up before Shri K. B. Andley, Additional Rent Controller on June 3, 1971 on transfer and it is also true that in clause (ii) of para 3 it is mentioned that the tenant shall pay Rs. 1700.00 per month payable on first of every month in advance and that the rent for the month of June 1971 had been paid on June 2, 1971 and in clause (iii) it is mentioned that the premises are let by the landlord to the tenant for a period of five years i.e. up to May 31, 1976. However, it is to be borne in mind that para 2 clearly mentions the word 'premises No. F-8 to be let to the tenant' and the prayer is that application under Section 21 the Act may be accepted. Section 21 is concerned with obtaining permission of the Controller for creation of limited tenancy in circumstances mentioned in that Section. Accordingly the receipt of rent for the month of June prior in point of time to the grant of permission by the Additional Rent Controller must be taken to be provisional and subject to the grant of the permission. It is, thereforee, futile to contend that an ordinary contractual tenancy to which grounds of eviction as mentioned in Section 14 of the Act were applicable came to be created before permission under Section 21 was procured and for that reason the permission was otiose.

(11) The last submission of Shri Ghopra is that according to Section 13 of the Act condition precedent for imposition of sentence is that the contempt should be of such a nature that it substantially interferes or tends substantially to interfere with the due course of justice. It is urged that, at the highest, it is a case where a decree for eviction was passed against the tenant who failed to vacate and is holding over. In my opinion, this is a wholly unwarranted simplification of a flagrant breach of solemn undertaking given to the Court. Besides tentamounting to gross flouting of the order of the Court based on solemn undertaking, it clearly smacks of disrespect and disregard to the Court. In Babu Ram Gupta v. Sudhir Bhasin and another, Criminal Appeal No. 501 of 1978, decided by the Supreme Court on April 12, 1979, it was observed :

'IN fact the reason why a breach of clear undertaking given to the Court amounts to contempt of Court is that contemner by making a false representation to the Court obtains a benefit, for himself and if he fails to honour the undertaking, he plays serious fraud on the Court itself and thereby obstructs the course of justice and brings into disrepute the judicial institution.'

In this case the learned counsel tendered what be described as unqualified oral apology while opening the address. This can, however, be of little consequence, as it is manifest that it is not bona fide. C.P. Prabhakar undertook to deliver vacant possession of the premises to the landlady on or before May 31)1978. He failed to do so. He also undertook to pay damages for use and occupation month by month. He failed to do so. He also undertook to pay damages for use and occupation month by month. He failed on that count, too. He has not expressed his readiness to deliver vacant possession or to pay damages. The conclusion is obvious that the so-called unqualified apology was tendered not out of penetence but to ward off the Court. There is, thereforee, no question of acceptiag such an apology. In Shantilal Makanji Kalyanji Shah v. Ranchoddas Girdhardas & others. Criminal Appeal No. 384 of 1978, decided by the Supreme Court on April 11, 1979 it was observed that where possession of house was not handed over in breach of undertaking given to the Court it was a serious matter which called for severe punishment.

(12) For the aforesaid reasons, I hold G. P. Prabhakar guilty of contempt of Court. Accordingly, I sentence him to simple imprisonment for three months and a fine of Rs. 1000.00 under Section 12 of the Act.


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