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Shyam Kak Vs. J.P. Gupta and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberCivil Miscellaneous (Main) Appeal No. 83 of 1983
Judge
Reported in24(1983)DLT12
ActsCode of Civil Procedure (CPC), 1908 - Order 21, Rules 35, 97, 98 and 100; Constitution of India - Article 227
AppellantShyam Kak
RespondentJ.P. Gupta and anr.
Advocates: Y.V. Chitale,; T.P. Natrula,; A.K. Sen and;
Excerpt:
.....the landlords knew very well that the petitioner shri kak was claiming the tenancy in his own right and should have brought this fact to the notice of the controller and made an application under rule 99 but he has not chosen to do so......registered between the said shri j.p. gupta and his wife smt. sita gupta, as lessers, and the arya offshore service (p) ltd., through their chief executive shri s.k. kak, as lessee, in respect of the aforesaid premises. the tenancy was granted for a period of three years commencing on 1-3-1977 at the rent of rs. 2700.00 p.m. the rent was payable quarterly. (2) on 6-2-1982, the lessers filed an eviction petition under section 14(1)(a) of the delhi rent control act, 1958 (the act) against the arya offshore service for non-payment of rent. in this petition, they also stated that the said arya offshore service has assigned, sublet or otherwise parted with possession of the premises in favor of the premises in favor of the said shri kak without their written consent. this showed that.....
Judgment:

M.L. Jain, J.

(1) -ON 10-2.1977 the 21-A Janpath, New Delhi office of the Arya Offshore Service (P) Ltd., Bombay, wrote to Shri J.P. Gupte, one of the owners of premises S-56, Panchshila Park, New Delhi, enclosing a cheque of Rs. 2700.00 as one month's advance rent. On 28-2-1977 a lease agreement was executed registered between the said Shri J.P. Gupta and his wife Smt. Sita Gupta, as Lessers, and the Arya Offshore Service (P) Ltd., through their Chief Executive Shri S.K. Kak, as lessee, in respect of the aforesaid premises. The tenancy was granted for a period of three years commencing on 1-3-1977 at the rent of Rs. 2700.00 p.m. The rent was payable quarterly.

(2) On 6-2-1982, the Lessers filed an eviction petition under Section 14(1)(a) of the Delhi Rent Control Act, 1958 (the Act) against the Arya Offshore Service for non-payment of rent. In this petition, they also stated that the said Arya Offshore Service has assigned, sublet or otherwise parted with possession of the premises in favor of the premises in favor of the said Shri Kak without their written consent. This showed that they knew that the premises were in his occupation. They. further stated that the petitioner Gupta was due to retire from service on 31-1-1982 and the couple intended to reside in Delhi in their own house and reserved liberty to institute separate proceedings on the ground of bona fide personal requirement under Section 14(1)(e) read with Section 25B of the Act.

(3) In this petition Shri Kak made an application on 22-4-1982 under Order I Rule 10, G.P.G. that it was not the Arya Offshore but it was he who was the tenant in the aforesaid premises. He explained how. He said that he joined the service of J.M. Baxi & Co, 21-A, Janpath, New Delhi, on 1-1-1977. Under the contract of his service, he was entitled to residential accommodation. His employers asked him to rent a house on his own for which he would be compensated by them. He then rented the aforesaid premises. In order to facilitate payment of the rent, he was appointed in 24-2-1977 as the general attorney of the Arya Offshore and was told that the amount of rent shall be sent from Bombay into the Bank account of the said company, which would be opened for the said purpose and he shall be authorised to operate that account. His employers assured him that the said arrangement was purely on account of the internal financial management between the two concerns and had nothing to do with the tenancy of the applicant. The possession of the premises were handed over to him on 28-2-1977, and on the same day he signed the lease deed in the name of the said company. This applicant was opposed by the landlords and still remains to be decided.

(4) In the meanwhile, the landlords filed another eviction petition on 24-4-1982 under Section 14(1)(e) read with Section 25B of the Act. In columns 16 and 19 thereof, they again stated that the premises were in possession of Shri S.K. Kak. On 20-7-1982 Shri S.K. Mathur appeared on behalf of the respondent and opposed the petition, but after hearing, the Controller made the order that summons has been served on the respondent on 28-5-1982, by ordinary process on 2-6-1982 by registered post, but the respondent made no application for leave to defend. thereforee, the petitioner became entitled to eviction. She allowed the petition, passed an order of eviction and also directed that the order shall not be executed for a period of six months.

(5) On 12-3-1983 an execution petition was filed in the court of the Controller and on 15-3-1983 she directed that warrant of possession be issued under Order 21 Rule 35 G.P.G. The warrant was issued on 17-3-1983 directing the bailiff to put the decree-holder in possession of the aforesaid premises and to remove any person bound by the decree who refuses to vacate the same. On 2-4-1983 the bailiff reported that the door of the house was locked and asked the decree-holder to seek further orders from the Controller. On 4-4-1983 the decree-holder applied for permission to break open the lock and doors. On 6.4.1983, the Controller made the order that 'the petition to break open the lock and door was considered and allowed. Let warrants for possession be issued accordingly'. In pursuance of this order, a warrant was issued on 12-4-1983. It was taken for execution on Sunday, 17-4-1983. The petitioner states that the decree-holder went to the premises along with the bailiff. It is further alleged that he was accompanied by 40 persons. The petitioner complains that he was manhandled and all of them began to throw his belongings on the street. Thereupon, he rushed with a petition, under Article 227 of the Constitution and upon the orders of the Chief Justice, it was presented to me at my residence on Sunday. He prayed for stay of eviction and quashing of the decree of eviction. I stayed the eviction but it appears that the stay order could not be served and complied with,

(6) On 18-4-1983 notices were issued dusty to the respondents and records were called through special messenger. The matter was heard on 19-4-1983.

(7) It is indisputable that the decree of ejectment could be executed by a warrant under Order 21 Rule 35 of the Code of Civil Procedure. It appears that where such warrant is not executed on account of some obstruction or resistance by any person, then the decree-holder has to make an application to the court complaining of such resistence or obstruction under Order 21 Rule 97. When such an application is made, the court is required to adjudicate upon the application and to make appropriate orders under Rule 98. But the learned Controller did not proceed to adjudicate upon the matter and straight way made an order under Sub-rule (3) of Rule 35 of Order 21 and directed the bailiff to remove the locks and break open doors. It, thereforee, resulted in dispossession of the petitioner in spite of his resistence and obstruction which is quite obvious from the facts as force was used to make an entry into the house.

(8) What is the remedy available in such a situation to a person who is claiming in good faith or otherwise to be in possession in his own right, in this case a tenant He has no doubt full and adequate remedy under Order 21 Rule 9$ to make an application to the court complaining of dispossession whereupon the court shall proceed to adjudicate under Rule 100 and make appropriate orders. A suit is barred under Rule 101. Instead of doing so, the petitioner has filed the present petition under Article 227 of the Constitution. It is a requirement of natural justice that before any adverse order is passed against a party, he must be given a hearing. That is also the specific requirement of Rule 105 of Order 21. The landlords knew very well that the petitioner Shri Kak was claiming the tenancy in his own right and should have brought this fact to the notice of the Controller and made an application under Rule 99 but he has not chosen to do so. All that has happened was not at all proper and defensible. I, thereforee, agree with Dr. Chitaley in his submission that where rules of natural justice are violated or high handedness or fraud is in display, the extraordinary jurisdiction of the court under Article 227 can in suitable cases be invoked.

(9) Now, the question is whether it is a fit case in which this court should exercise its jurisdiction, instead of directing the petitioner to seek his remedy under Order 21 Rule 99. Shri A.K. Sen contended strenuously that there is no modicum of right in the petitioner so as to enable him to invoke the jurisdiction of this court. He also relied upon Section 25 of the Act which provides that an order of eviction made under the Act is binding on all persons except a person who has an independent title to such premises. Does the petitioner have any such title even prima facie There is no doubt that the lease was executed on behalf of the Arya Offshore by the petitioner as their Chief Executive. Now he claims that he was not their employee, but of the J.M.Baxi& Co., which is perhaps a sister concern of the Arya Offshore. His contention is that the premises were taken on rent by J.M.Baxi & Co. and Arya Offshore came into the picture only for purposes of payment of rent. One does not know how far this involved arrangement was there or not there. Prima facie, it appears that throughout the period until the petitioner filed an application under Order 1 Rule 10 Civil Procedure Code ., the Lessers knew and were given to understand and correctly too that the lessee was the Arya Offshore. Even the petitioner was asking them to approach the Bombay office for payment of arrears of rent, vide his letter dated 31.7.1978. If he was the real tenant, then it was his duty to pay the rent and it was for him and his employers to settle the matter between them and not for the Lessers to do so. This is a very disputed question of fact and it is not possible to decide this question in this petition. That prevents this court from granting any relief in its supervisory jurisdiction.

(10) I, thereforee, dismiss the petition. No costs.


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