Skip to content


Dewan Anand Kumar and ors. Vs. Shama Magazine - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 30D of 1966
Judge
Reported inILR1971Delhi85
ActsDelhi Rent Control Act, 1958 - Sections 6; Delhi Rent Control Rules, 1959 - Rules 23
AppellantDewan Anand Kumar and ors.
RespondentShama Magazine
Advocates: S.N. Chopra,; K.N. Kataria and; R.M. Lal, Advs
Cases ReferredShikar Chand Jain v. Ravindra Kumar
Excerpt:
(i) delhi rent control act (1958) - sections 6, 9 & 12--application for fixation of standard rent by tenant filed beyond limitations-burden of proof lies on tenant to show that his application is still within time--pleading and proof constituting 'sufficient cause' when necessary--delhi rent control rules (1959), rule 23.; in the instant case, the premises in despite were constructed in december, 1953 and were let to the tenant-respondent on 1-1-1954. the tenant applied for fixation of standard rent on 20-7-1962 under section 9 & 12, of delhi rent control act. he pleaded that he was prevented by sufficient cause from filing the application earlier. in his application, the tenant stated as under :; 'under section 6(2) of the act the agreed rent continued in force for a period of..........let out to the tenant with effect from 1st january, 1954. the tenant applied for the fixation of standard rent of the premises on 20th july 1962. under sections 9 and 12 of the delhi rent control act. 1958 (hereinafter called the act). in column is (a) of the application, the tenant stated as follows :- 'under section 6(2) of the act the agreed rent continued in. force for a period of seven years up to 31st december, 1960. the applicant was prevented from filing the application for standard rent uptil 31st december. 1960 as on that date the seven years period expired. this application is being submitted within two years of the time when the petitioner became entitled to submit the application for fixation of standard rent. the application is being submitted within two years of the.....
Judgment:

V.S. Deshpande, J.

(1) The appellants are the landlords of the premises the construction of which was finished in December 1953 and which were let out to the tenant with effect from 1st January, 1954. The tenant applied for the fixation of standard rent of the premises on 20th July 1962. under sections 9 and 12 of the Delhi Rent Control Act. 1958 (hereinafter called the Act). In column Is (a) of the application, the tenant stated as follows :-

'under section 6(2) of the Act the agreed rent continued in. force for a period of seven years up to 31st December, 1960. The applicant was prevented from filing the application for standard rent uptil 31st December. 1960 as on that date the seven years period expired. This application is being submitted within two years of the time when the petitioner became entitled to submit the application for fixation of standard rent. The application is being submitted within two years of the arising of the cause of action on 1st January, 1961. The applicant was prevented by sufficient cause from filing the application earlier.'

(2) In reply the landlords stated that the contentions of the tenant were wholly unfounded and incorrect. They prayed that the application be dismissed with costs. Before the Controller the tenant argued that his application was within time while the respondents contested the application on the ground that it was barred by limitation. The Magazine Controller did not agree with the tenant that no application lor fixation of standard rent could be tiled within the first seven years from the of the letting of the premises. He, thereforee, dismissed the application as barred by time.

(3) The Rent Control Tribunal also agreed that sections 6 and 12 of the Act did not create any legal bar. to the filing of such an application within the period of two years from the date of the letting as that was the period of limitation fixed for such an application. The Tribunal however thought that the impression created was that for this period of seven years the tenant could not move for fixation of standard rent at a rate lower than the agreed rate and that it was a fit case where the proviso to section 12 of the Act should be invoked to treat the tenant's application as being within time. On this reasoning the Tribunal reversed the order of the Controller and remanded the case to the Controller for consideration of the application on merits. This second appeal by the landlords is against this order of the Tribunal.

(4) The sole question for decision is whether the application for the fixation of standard rent is within time. Under section 12(b)(ii) of the Act a tenant may file an application to the Controller for fixing the standard rent of the premises within two years from the date on which the premises were let to the tenant. But the proviso to section 12 which is important for the decision of this case is as follows :-

'provided that the Controller may entertain the application after the expiry of the said period of two years, if he is satisfied that the applicant was prevented by sufficient cause from filing the application in time.'

Section 6(1) lays down the criteria for the fixation of the standard rent in different circumstances. Section 6(2)(a) which is material for consideration in this case is as follows :-

'Notwithstanding anything contained in sub-section (1),-(a) in the case of any premises, whether residential or not, constructed on or after 2nd day of June, 1951, but before the 9th day of June, 1955, the annual rent calculated with reference to the rent at which the premises were let for the month of March, 1958, or if they were not so let. with reference to the rent at which they were last let out. shall be deemed to be the standard rent for a period of seven years from the date of the completion of the construction of such premises: . . . . . .'

Reading section 12(b)(ii) and its proviso with section 6(2)(a) of the Act, we have to consider whether the application for fixation of standard rent is within time. As the period of limitation under section 12(b)(ii) was only two years from, the date of the letting. namely, 1st January, 1954, the application for the fixation of standard rent should have been filed in this case on or before 1st January, 1956. There is no provision in the Act which postpones the starting point of limitation or stops the running of the limitation. The burden is. thereforee, on the tenant to show how his application is still within time. The only way in which he could do so is to bring himself within the terms of the proviso to section 12.

(5) When can a person be said to be prevented by a 'sufficient cause' from filing an application for fixation of standard rent within the meaning of the proviso to section 12 (which is analogous to section 5 of the Limitation Act, 1963) Under the principle underlying section 3 of the Limitation Act, it is the duty of the Court to dismiss an application barred by time even though limitation may not be set up as a defense. Further as recognized by the Supreme Court in Ramlat v. Rewa Coalfields, Ltd., : [1962]2SCR762 the expiry of the prescribed period of limitation gives the landlord a right to resist such an application as being barred by time. This right 'should not be light-heartedly disturbed'.

(6) What is 'sufficient cause' is primarily a question of fact. Under section 37(2) of the Act, 'subject to any rules that may be made under this Act, the Controller shall, while holding an inquiry in any proceeding before him, follow as far as may be the practice and procedure of a court of small causes, including the recording of evidence'. Rule 23 of the Delhi Rent Control Rules, 1959 also says that 'in deciding any question relating to the procedure not specially provided by. the Act, the Controller and the Rent Control Tribunal shall as far as possible be guided by the provisions contained in the Code of Civil Procedure 1908.' On principle, thereforee, if not in terms, the provisions of the Code of Civil Procedure should guide the Controller in dealing with this question. The principles underlying the following provisions of the Civil Procedure Code are, thereforee, relevant in this connection. Order Vi Rule 2 of the Code requires that every pleading shall contain a statement of the material facts on which the party relies for his claim. Order Vi Rule 10 says that 'wherever it is material to allege .......... intention, knowledge or other condition of the mind of any person, it shall be sufficient to allege the same as a fact without, setting out the circumstances from which the same is to be inferred.' Order Vi Rule 13 is that neither party need in any pleading allege any matter of fact which the law presumes in his favor or as to which the burden of proof lies upon the other side. Order Vii Rule 6 says that 'where the suit is instituted after the expiration of the period prescribed by the law of limitation, the plaint shall show the ground upon which exemption from such law is claimed.' On these principles it was necessary for the tenant in the present case to state specifically the ground, namely, the sufficient cause by which he was prevented from making the application in time. Such a ground may consist either of an external fact which can be perceived or of an internal fact such as the state of mind of the tenant. In either case, it is to be pleaded and proved as a fact. In paragraph 18(a) of his application, the tenant did not plead as a fact that he was under a bona fide misapprehension of the law contained in sections 6 and 12 of the Act. The state of his mind is not pleaded at all. On the contrary a bald statement is made that the application could not be made till 31st December, 1960 as if this was the law. Similarly it is stated that the application was made within two years of the arising of the cause of action on 1st January, 1961 as if that was also the law. Tagged on to these two statements is the parrot like repetition of the substance of the proviso to section 12 that the 'applicant was prevented by sufficient cause from filing the application earlier'. This reference to the proviso to section 12 does not fit in with the earlier statements of law. This was why the question decided by the Controller merely was whether the law was as stated by the tenant or whether the application was barred by time. It is only before the Tribunal that the question of the applicant being prevented by sufficient cause within the meaning of the proviso to section 12 arose. The nature of this plea of 'sufficient cause' has been considered recently by the Supreme Court in Assistant Collector of Customs v. Charan Das Malhotra, : 1973ECR1(SC) . When an administrative authority has 'reason to believe' something the said authority acts on subjective satisfaction based on existing facts. Before forming such subjective opinion, it is not necessary that the party against whom the opinion is formed should be noticed and heard. But when the authority has to be satisfied about the existence of a 'sufficient cause' the implication is that the authority has to make an inquiry on the materials placed before him after giving the affected party an opportunity to show cause why the question of 'sufficient cause' should not be decided against him. thereforee, unless the applicant pleads and makes out a case of being prevented by sufficient cause from making the application in time, the landlord is not put on sufficient notice to defend the case and the court is denied the materials on which the finding as to the 'sufficient cause' has to be given. Shri R. M. Lal, learned counsel for the tenant, however, purported to rely upon the decision of P. N. Khanna, J. in Cyan Chand v. Chaman Dass, 1970 R C R 556, for the proposition that even without any pleading and without any application for the condensation of delay and on mere argument of the counsel raised in the High Court this Court can give a finding of 'sufficient cause' in favor of the tenant. It is true that from the facts stated in the judgment it is not known whether the tenant had either pleaded the facts or made an application showing that he was prevented by sufficient cause from making an application within limitation. But at the top of page 558, the learned Judge has posed the question for decision in the following words :-

'THEquestion, thereforee, arises whether the. applicant was prevented by sufficient cause from filing the application within time.'

(7) The argument of the counsel was that the tenant was under a bona fide belief to the effect that an application for fixation of standard rent could not be made before November 30. 1964 as the agreed rent was the standard rent under section 6(2) of the Act.' The learned Judge then observed that 'a similar contention was considered by a Division Bench of this court in Gurcharan Singh v. Hans Raj, 1969 R.C.R. 548.' We know that in Gurcharan Singh's case the tenant had made an application for condensation of delay expressly alleging two facts, namely, (1) his illness; and (2) that he was under a bona fide impression that he could file a petition for fixation of the standard rent within two vears after the expiry of five years. The Additional Rent Controller gave a finding that the tenant was under such a wrong but bona fide impression. The Division Bench decision is thus not an authority that the benefit of the proviso to section 12 can be given by this Court without any finding as to the existence of 'sufficient cause' or that such a finding can be arrived at merely on the strength of argument. Of course a fact of which the Court can take judicial notice or which the law presumes in favor of the tenant or as to which the burden of proof lies on the landlord need not be pleaded by the tenant. For instance, section 3 of the Act was amended retrospectively on 12th March, 1963 which suddenly made the Act applicable to certain premises from the commencement of the Act though till the retrospective amendment made on 12th March, 1963 the Act did not apply to such premises. The Court could take judicial notice of the fact that a tenant had sufficient cause for not making an application for fixation of standard rent from the commencement of the Act till 12th March 1963. (See Smt. Sewa Devi v. Kishun Singh, S.A.O. 404 of 1968 decided on March 4, 1971 , and Krishan Kumar v. Des Raj, S.A.O. 51 of 1968 decided on April 6, 1971, Even then as held in Sewa Devi and Krishan Kumar cases and in Shikar Chand Jain v. Ravindra Kumar, .1970 R.C.R. 210, the tenant had to file the application for fixation of the standard rent immediately alter 12th March, 1963. In the present case, section 6 of the Act is concerned only with laying down the various criteria for the fixation of standard rent in different circumstances. thereforee, section 6(2)(a) merely provides that the agreed rent was deemed to be the standard rent for the first seven years from the date of the completion of the construction of the premises. Section 6(2)(a) is thus concerned only with the statutory standard for the fixation of standard rent. Section 6(1) begins by saying that 'subject to the provisions of sub-section (2), 'standard rent', in relation to any premises means'. It has, thereforee, defined 'standard rent' of different kinds of premises in different kinds of circumstances. When section 6(2)(a) says that the agreed rent 'shall be deemed to be the standard rent for a period of seven years' it only raises a conclusive presumption as to the meaning of 'standard rent' in such circumstances. It does not say that the Controller shall be deemed to have fixed the standard rent in such a case so as to prevented an application from being made within the period of limitation prescribed by section 12. It was necessary, thereforee, for the tenant to make the application within two years even though the Controller was bound to fix the standard rent for the first seven years at the same figure at which the agreed rent had been fixed by the parties. But the reasoning of the Rent Control Tribunal that there was no point in making an application within two years and that it would remain in cold storage for a period of more than five years and there could be considerable changes during this long period, is based on a misapprehension. For. the Controller was bound to fix the standard rent of these premises on the basis of the cost of construction under section 6(1). In fact. the evidence of the cost of construction was fresh within the first two years after the construction of the premises and this was all the more reason why an application for fixation of standard rent should have been made within the first two years which was also the prescribed period of limitation. It is true that some tenants who were so perverse as not to take legal advice for seven Years may have believed that they could not apply for fixation of standard rent within the first seven years after the construction of the premises. But there is no pleading that the tenant in this case was such a person. On the other hand, the tenant agreed to pay a monthly rent of Rs. l,460.00. He is running a magazine and was, thereforee, conversant with business. In the absence of any pleading, much less proof, about the mental condition of the tenant about being under a mistake of law, there is no presumption of fact which can be raised in his favor as to being under such a misapprehension. In view of the fact that almost hundred per cent tenants in the city of Delhi fight their litigation with the help of their counsel it is difficult to believe that any of them could be under the misapprehension that he could not apply for fixation of standard rent for seven years in view of section 6(2)(a). On the contrary, having agreed to the payment of a high rate of rent, there was every inducement for the tenant respondent to seek legal advice as to how the rent could be reduced by the fixation of the standard rent. It is conceivable that a person who contends that according to his construction of the law his application is within limitation may discover for the first time by the decision of his own case by the Court that the law was otherwise and he was under a misapprehension as to its meaning. If the Court is satisfied in such a case that the law was so doubtful till the decision was given by the Court that even the Court itself had to take pa,ins to find out the agreed legal position, then in such a case the Court may perhaps hold that the applicant could be under a bona fide misapprehension of the law and this could be 'sufficient cause' within the meaning of the proviso to section 12. Iii such a case a previous pleading and proof of the facts constituting sufficient cause need not be insisted upon. But it is clear that the present case is not such a case. The law has been well-established from the commencement of the Act in 1958 till now that section 6(2)(a) had nothing to do with the postponing of the terminus a quo of the period of limitation prescribed by section 12. thereforee, in the present case, the only way to be adopted by the tenant was to make a proper pleading that he was under a misapprehension about the effect of section 6(2)(a). As he has made no such pleading he cannot get the benefit of the proviso to section 12 on the alleged ground that he could not have made the application for fixation of standard rent for seven years after the construction of the premises. Even if it is assumed for the sake of argument that the petitioner could be under a misapprehension as to the effect of section 6(2)(a), this would only mean that for the first seven years he thought he was unable to make the application. But this period expired on 1st April, 1961. Thereafter the tenant had to make the application as soon as possible. As observed by the Supreme Court in Ramlal's case referred to above the delay of every day in making the application after the expiry of the period of limitation has to be explained by the petitioner if he has to get the benefit of section 5 of the Limitation Act which corresponds to the proviso to section 12 of the Act. But the tenant has neither pleaded nor proved any reasons whatever for not making the application from 1st April, 1961 till 20th July. 1962. He merely states the law which according to him was that the cause of action for making the application arose on 1st April, 1961 and he could. thereforee, make the application within two years thereafter. He thus knows that the period of limitation was two years. This he could find only in section 12. But the starting point of limitation stated in section 12 is the date on which the premises were let to the tenant. The tenant has not explained how and why he ignored this provision of law and what led him to think that the starting point of limitation has been postponed till 1st April, 1961. There is absolutely no doubt about the law on this point. Nor was it suggested by the learned counsel for the respondent in his argument that there was any room. for thinking that the terminus a quo has been postponed till 1st April, 1961. As the tenant himself does not say that he thought bona fide that the starting point of limitation was postponed to 1st April, 1961, the mere assertion by him in the petition that the cause of action arose on 1st April, 1961 is of no avail to him. A statement by the tenant that the cause of action arose on 1st April, 1961 can. for his benefit, only be construed to mean that the tenant believed that the cause of action arose on 1st April, 1961. This places him in no better position that if he had said that he was under such a bona. fide mistake. Even if it is assumed that he had made such a pleading. no court of law would find it easy to agree with him. For. the Court has to be satisfied about the existence of the sufficient cause. A possible plea that a tenant could think that the terminus a quo itself has been postponed is so contrary to what the law is that in the circumstances of the present case no Court could believe that the tenant was really under such a misapprehension. The greatest weakness of the decision of the Rent Control Tribunal is that it did not consider this question at all. It did not, thereforee, give any finding as to why the delay in making the application after 1st April, 1961 should be condoned. As there is no finding of fact that the petitioner was under any wrong impression after 1st April, 1961 and as no presumption in this respect can be raised in his favor it must be found that no sufficient cause has been shown which could have prevented the petitioner from making the application from 1-4-1961 to 20-7-1962 1962- The application was, thereforee, barred by time.

(8) The decision of the Rent Control Tribunal is, thereforee, set aside and the application of the respondent for the fixation of the standard rent is ordered to be dismissed with costs throughout. Counsel's fee Rs. 150.00.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //