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Dev Raj Gupta Vs. Daulat Ram Public Trust and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberCivil Miscellaneous (Main) Appeal No. 126 of 1971
Judge
Reported inILR1972Delhi323; 1972RLR62
ActsDelhi Rent Control Act, 1958 - Sections 1 and 42; Code of Civil Procedure (CPC), 1908
AppellantDev Raj Gupta
RespondentDaulat Ram Public Trust and ors.
Advocates: S.K. Mehra, Adv
Excerpt:
.....to--scope of--who can apply under.; that under colour of an order of eviction obtained against the tenant, a person in possession of the property under an independent title could not be dispossessed. to let this happen would be to invest the order of eviction passed by a controller with even graver consequences than of a decree of a civil court; this is not permissible. if a person claimed a title independent of the landlord he could apply under section 25 and request the rent controller to adjudicate whether he was in possession in exercise of such independent title. if the person claiming an independent title only put forward a claim on behalf of or derived form one who was the tenant of the landlord he could not invoke section 25 of the act and request he rent controller to adjudicate..........rules would be final unless a suit is filed to establish the right which the person claims to the personal possession of the property.(14) there could be no departure from the civil procedure code in the matter of executing orders of eviction, except to the extent permitted. by the act, section 25 in the present case.(15) the further question whether petitioner not claiming title independent of the landlord could be dispossessed by the rent controller seems, thereforee, to admit of only one answer, namely, in the affirmative -he could be dispossessed.(16) the person claiming title independently of the landlord, however. could not obviously be evicted on foot of an order obtained against the landlord's tenant in a proceeding to which the person so claiming independent title was not made.....
Judgment:

S. Rangarajan, J.

(1) This judgment will dispose of two other connected petitions C.M. (Main) 125 and 127 of 1971. It will be sufficient to state the facts pertaining to Civil Miscellaneous (M.) 126. The petitioner claims to have been inducted into premises No. 849, Joshi Road, Karol Bagh, New Delhi with effect from 1-4-1965 by Dr. N. C. Joshi Nursing House managed by Dr. Joshi.Memorial Hospital Society (Regd.) and to occupy two rooms, one store, kitchen, latrine and a common court-yard since then. He claims that the said premises were given to him for his occupation by the above Society since he was retained as a Legal Adviser for the said Hospital.

(2) It is common ground that on 20-11-1970 the entire premises including the portions in the occupation of the petitioner were requisitioned by the Collector, Delhi under the Requisitioning and Acquisition of Immovable Properties Act, 1952, challenging which a writ petition has been filed (No. 1391 of 1970) by the petitioner. Stay of dispossession was also granted to him and the writ petition is still pending. Other occupants of the said premises had also filed similar writ petitions and obtained similar orders of stay.

(3) On 2-2-1971 the first respondent (Messrs Daulat Ram Public Trust) obtained an order for eviction against Miss Nirmala Joshi alleging that she was the tenant. Execution proceedings were also filed on the foot of the said decree for eviction.

(4) On 8-5-71 when the decree holder went to take possession the occupants thereof, including the petitioner resisted. The petitioner and others filed objections under Order 21 Rule 99 and Section 151 Civil Procedure Code read with Section 25 of the Delhi Rent Control Act, 1958 before the Additional Rent Controller, Delhi who by his order dated 30-7-71 (copy of which is Annexure B to the petition) dismissed the said objections on the ground, among others, that Section 25 of the Delhi Rent Control Act, 1958 does not confer any jurisdiction on the Controller to adjudicate the existence or otherwise of an independent title and, thereforee, the objectors had to only invoke the jurisdiction. of the Civil Court. On this very question my attention has been drawn to a decision of the Division Bench of this Court consisting of S. N. Shanker and V. D. Misra, JJ. in Smf. Kama! Kumari v. Shri Jagdish Rai Aggarwal and others, (C.R. No. 142 of 1967 decided on 13th August, 1970),(l) but the question, however, arose under the Delhi and Ajmer Rent Control Act, 1952. Section 21 of the said Act was discussed in the context of Section 34 which provided for appeals against certain orders passed under the said Act.

(5) The language of Section 21 of the Delhi and Ajmer Rent Control Act. 1952 and of Section 25 of the Delhi Rent Control Act, 1958 no doubt seem to be similar. Section 21 of the Act of 1952 reads as follows :

'21.Vacant possession to the landlord.-Notwithstanding anything contained in any other law, where the interest of a tenant in any premises is determined for any reason whatsoever and any decree or order is passed by a court under this Act for the recovery of possession of such premises, the decree or order shall, subject to the provisions of Section 20, be binding on all persons who may be in occupation of the premises and vacant possession thereof shall be given to the landlord by evicting all such persons there from. Provided that nothing in this section shall apply to any person who has an independent title to such premises.'

(6) Section 20 of the Act of 1952 is about sub-tenants becoming tenants on determination of tenancy; the corresponding provision in the Act of 1958 is Section 18. It is needless to refer for the purpose of this case to Sections 14 and 17 which have also been referred to in Section 18 of the Act of 1958. The most material difference however, between the two Acts so far as the present question is concerned, is that there was no provision corresponding to Section 42 in the Act of 1958 in the Act of 1952. Section 42 of the Act of 1958 reads :-

'42.Controller to exercise powers of civil court for execution of other orders.- Save as otherwise provided in Section 41, an order made by the Controller or an order passed on appeal under this Act shall be executable by the Controller as a decree of a civil court and for this purpose, the Controller shall have all the powers of a civil court.'

(7) In the old Act of 1952 in pursuance of Section 45 which enabled rules to be made, Rule 4 had provided as follows :-

'IN deciding any question relating to procedure not specifically provided by the Act or by these Rules, the Court shall, as tar as possible, be governed by the provisions contained in. the Code of Civil Procedure. 1908.'

Shanker, J. speaking for the Division Bench observed as follows :--

'IT is true that the provisions of the Code apply only 'as far as possible', but the only meaning of this expression in this context is that they are applicable in so far as they are not inconsistent with the provisions of this Act. They will certainly not apply if there is anything to the contrary provided in the Act either explicitly or by necessary implication.'

(8) Any order made by the Controller, excepting one under Section 41 where the Controller exercise? the power of a Magistrate for recovery of fine, or an order passed in appeal under the Act shall be executable by the Controller as a decree of a civil court and for this purpose, namely for executing the order the Controller can exercise all the powers of a civil court Section 42, which prescribes the manner of execution of such orders and the procedure to be adopted in executing such order, has doubtless to be read only subject to the substantive provision under Section 25.

(9) The scheme of the present Act seems to be that except in the eventuality specifically prescribed by Section 18 where a Sub-tenant can become the tenant, by issue of the required notice etc., once a decree for eviction is passed against a tenant of any property that decree lor eviction will be binding on all persons who are in occupation of the premises, and despite the possession of others who are not tenants, the Court shall deliver possession of the premises to the landlord by evicting all such persons. Changes were made in (lie Act of 1958, from the Act of 1952 :

'S. 20 of 1952 Act.- -Where the interest of a tenant of any premises is determined for any reason, any sub tenant to whom the whole or any part of such premises has been lawfully sublet whether before or after the commencement of this Act shall, subject to the provisions of this Act, be deemed to become the tenant of the landlord on the same terms and conditions on which he would have held from the tenant if the tenancy had continued.'

'S. 17 of Act, 1958.--(1) Where, after the commencement of this A.ct, any premises are sub-let either in whole or in part by the tenant with the previous consent in writing of the landlord, the tenant or the sub-tenant to whom the premises are sub-let may, in the prescribed manner, give notice to the landlord of the creation of the sub-tenancy within one month of the date of such sub-letting and notify the termination of such subtenancy within one month of such termination. (2) Where, before the commencement of this Act, any premises have been lawfully sub-let either in whole or in part by the tenant, the tenant or the sub-tenant to whom the premises have been sub-let may, in the prescribed manner, give notice to the landlord of the creation of the sub-tenancy within six months of the commencement of this Act, and notify the termination of such sub-tenancy within one month of such termination. (3) Where in any case mentioned in sub-section (2), the landlord contests that the premises were not lawfully sub-let, and an application is made to the Controller in this behalf, either by the landlord or by the sub-tenant, within two months of the date of the receipt of the notice of subletting by the landlord or the issue of the notice by the tenant or the sub-tenant, as the case may be, the Controller shall decide the dispute.'

'S. 18 of Act, 1958.-(1) Where an order for eviction in respect of any premises is made under section 14 against a tenant but not against a sub-tenant referred to in section 17 and a notice of the sub-tenancy has been given to the landlord, the sub-tenant shall, with effect from the date of the order, be deemed to become a tenant holding directly under the landlord in respect of the premises in his occupation on the same terms and conditions on which the tenant would have held from the landlord, if the tenancy had continued. (2) Where, before the commencement of this Act, the interest of a tenant in respect of any premises has been determined without determining the interest of any sub-tenant to whom the premises either in whole or in part had been lawfully sub-let, the sub-tenant shall, with effect from the date of the commencement of this Act, be deemed to have become a tenant holding directly under the landlord on the same terms and conditions on which the tenant would have held from the landlord, if the tenancy had continued.'

(10) If the sub-tenant complied with section 17 any eviction obtained against the tenant above would not bind him; if he did not, he would also have to be evicted in spite of his not being made a party to the petition for eviction. The object of such a provision is obviously to save the landlord from harassment in the matter of getting possession even after getting an appropriate order of eviction against the tenant who had been imp leaded as a party in the petition for eviction. But Section 25 would not apply to any person who had an 'independent title' to such premises, i.e. to one who claimed title independently of the landlord; it would, in other words, apply to all others in possession.

(11) The provisions of the Code of Civil Procedure have been made applicable by Section 42 in a more comprehensive manner than by the previous Rule 4. The order for eviction itself is to be executed by resorting to a legal fiction, by deeming it to be a decree or order passed by a civil court, thus attracting the entire civil procedure pertaining to execution of orders and decrees. The language of Section 42 is thus markedly different from that of the previous Rule 4 which did not make such orders executable as if they were passed by a civil court; on the contrary, the provisions of the Code of Civil Procedure were made applicable only 'as far as possible.' The legal consequence of S. 42 being that all the provisions of the Code of Civil Procedure, which apply to execution of decrees be applied, without exception, to the execution of such orders, there is a vital difference between Section 42 of the Act of 1958 and Rule 4 framed under the Act of 1952.

(12) Section 25 of the Act gets added meaning in the context of Sections 17 and 18. Unless a person in possession of the premises or part thereof intimates to the landlord by giving the requisite notice in writing that he was in possession as sub-tenant he need not be made a party to the application for eviction; if he does comply with S. 17 he would incur the risk of being evicted by an order of eviction obtained against the tenant alone. A person in possession of the premises or part thereof, under a title independently of the landlord, would not resort to the procedure under Section 17 for the simple reason that he is not a sub-tenant but claims independently, of the landlord. It is, thereforee, plain that under colour of an order of eviction obtained against the tenant, a person in possession of the property under an independent title could not be dispossessed. To let this happen would be to invest the order of eviction passed by a Controller with even graver consequences than of a decree of a civil court; this is not permissible. Section 42 of the Act of 1958 only makes an order of eviction passed by the Controller equivalent to, but not higher than, a decree of a civil court for the purpose of executing that order.

(13) Rules 97 to 102 of Order 21 of the Code of Civil Procedure relate to the procedure to be followed when there is obstruction to the execution of a decree for possession. When there is resistance to delivery of possession, the decree holder may apply under Order 21 Rule 97 for obstruction to be removed and possession delivered to the decreeholder. The executing court shall then enquire into the said application and if it is satisfied that the resistance or obstruction is occasioned without any just cause by the judgment-debtor or by some other person at his instigation it shall direct that the applicant be put in possession of the property. But if it is satisfied that the resistance or obstruction was caused by any person other than the judgment debtor claiming in good faith to be in possession of the property of his own account or on account of some person other than the judgment-debtor, the Court shall make an order dismissing the application under Order 21 Rule 99. Order 21 Rule 100 provides for cases where a person in possession, other than the judgment-debtor, is dispossessed of immovable property by the decree holder; he can apply to the court for restoration of his possession and this also would be enquired into and restoration would be ordered under Rule 101 if the claim is bonafide. Order 21 Rule 103 provides that such orders passed under the above said rules would be final unless a suit is filed to establish the right which the person claims to the personal possession of the property.

(14) There could be no departure from the Civil Procedure Code in the matter of executing orders of eviction, except to the extent permitted. by the Act, Section 25 in the present case.

(15) The further question whether petitioner not claiming title independent of the landlord could be dispossessed by the Rent Controller seems, thereforee, to admit of only one answer, namely, in the affirmative -he could be dispossessed.

(16) The person claiming title independently of the landlord, however. could not obviously be evicted on foot of an order obtained against the landlord's tenant in a proceeding to which the person so claiming independent title was not made a party. It is to meet with this situation that the above provision has been introduced into S. 25 which, but for the proviso, would make an order for eviction obtained by a landlord against the tenant binding on all persons in possession of the premises. The legislature had to provide for two situations :

(1)To avoid the hardship to the landlord by having to implead all persons in possession of the property inspire of the fact he let out the premises to only a single tenant and the other persons had been inducted into the premises by the tenant and they or any of them had not complied with the procedure described under Section 18 of the Act by giving notice to the landlord of their or his having been inducted into the premises by the tenant of the landlord. If such intimation was given the landlord would be bound to make them parties to his application for evicting the tenant even as in the absence of such a notice the landlord was not required to take any notice of their being in possession of any part or whole of the premises which had been demised to the tenant. But for such a provision the landlord would have had to face successive applications under Section 25 of the Act by persons claiming to be in possession of the property deriving interest from the tenant. (2) To protect the interest of a person bona fide in possession of the whole or any portion of the premises in assertion of title independent of the landlord from being summarily affected by the landlord by reason of an order which he obtained against one he described to be as the tenant of the entire property.

(17) It was to provide for both the kinds of interests being safeguarded that S.. 25 with the proviso, was enacted. It is thus clear that if a person claimed a title independent of the landlord he could apply under Section 25 and request the Rent Controller to adjudicate whether he was in possession in exercise of such independent title. If the person claiming an independent title only put forward a claim on behalf of or derived from one who was the tenant of the landlord he could not invoke Section 25 of the Act and request the Rent Controller to adjudicate on such a claim.

(18) The application by the petitioner under Section 25 of the Act (copy of which is Annexure 'A' to the petition) proceeds on the footing that the Daulat Ram Public Trust was the landlord of the premises and that the Dr. N. C. Joshi Nursing.Home was the original tenant. The order for eviction was admittedly obtained in a proceeding to which Miss Nirmala Joshi was a party. All that is stated is that Miss Nirmala Joshi had not been able to understand the proceedings and that she was not imp leaded through her next friend. The petitioner carefully refrained from staling who put him in possession of a portion of the premises. In the petition filed in this court, however, an allegation has been made that the petitioner was inducted into the premises by Dr. N. C. Joshi, Nursing Home managed by Dr. Joshi Memorial Hospital Society (Regd.) East Park Road, Karol Bagh. New Delhi-5 and that possession was given by the said Society in lieu of the petitioner having been retained as a Legal Adviser in the said Hospital. It is significant to note that the name of the person who acted on behalf of the said Society is not mentioned. In the affidavit filed by Shri Krishan Mohan on behalf of the first respondent in opposition toC. M. (Main) 126 of 1971, it has been asserted that the petitioner was unauthorisedly inducted by Miss 'Nirmala Joshi who was a tenant of the said premises. What is more to the point is that in the absence of any averment in the application under Section 25 that the petitioner was claiming title independent of the landlord, no inquiry could be made under Section 25 at the instance of the petitioner. The impugned order dismissing the petitioner's application under Section 25 on the ground that it was not maintainable under that Section is, thereforee, one which cannot be stated to be erroneous.

(19) Reference has to be made to yet another aspect to which reference has been made in the application under Section 25. It is claimed that in the month of November 1970 the Collector, Delhi had requisitioned the property in dispute under the Requisitioning & Acquisition of Immoveable property Act, 1952 and for that reason it is claimed that the right of the landlord to execute the decree for eviction had come to an end. It is further stated that the Daulat Ram Trust had filed an appeal against the said order of requisition before the Lt. Governor which was dismissed by him and that thereforee a writ petition has been filed in this court for restraining the Union of India from dispossessing the occupants of the premises and taking possession of the premises in dispute, which is impliedly said to mean that the status quo had to be maintained till the disposal of the writ petition. The petitioner has also filed a writ petition and has obtained an order of interim stay of dispossession. In the view that the petitioner could not apply to the Rent Controller under Section 25 no other question arises for being adjudicated upon in the said application. The petitioner could refer to these aspects before the Rent Controller only if his application under Section 25 was maintainable; if the said application is not maintainable he could not, in that application, request the Rent Controller to decide the effect of the order passed by the Collector under the Requisitioning & Acquisition of Immoveable Property Act, 1952. It is, thereforee, needless to canvass the effect of that order in an application filed by the petitioner under Section 25.

(20) I may only mention for the sake of completeness that it was contended for the landlord (The Daulat Ram Trust) that the benefit of a person in possession claiming alternative accommodation to be provided before an order of requisition passed under the said Act of 1952 would arise only in the case of a 'tenant' who had been in possession of the whole or part of the said premises so requisitioned for not less than two months immediately preceding the date of service of the notice under sub-section (1) of Section 3 of the said Act. In other words, the contention for the landlord is that the petitioner who does not claim to be a tenant of the property under the landlord could not get the benefit of being provided with alternative accommodation. It is, however, needless to canvass the correctness of this contention in the view that the application under Section 25 by the petitioner was not maintainable.

(21) It follows, thereforee, that if the petitioner has any remedy, on which it is needless to express any opinion, it could not be by way of application under Section 25 of the Act. The petition, thereforee, fails and is dismissed, but in the circumstances without costs.


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