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Curewell (India) Ltd. Vs. Sahib Singh - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 61 of 1979
Judge
Reported in21(1982)DLT397; 1982(3)DRJ193
ActsDelhi Rent Control Act, 1958 - Sections 14(1)
AppellantCurewell (India) Ltd.
RespondentSahib Singh
Advocates: R.P. Bansal,; N.N. Agarwal and; H.N. Chaudhary, Advs
Excerpt:
.....interpreted as 'and'. thus if a tenant wants protection against eviction be is liable to pay the misuse charges from the date of the service of the notice requiring him to stop the misuse till the date of stopping the misuse. - - learned counsel for the respondent in his reply dated 11th january, 1982 stated that the appellant had enjoyed the benefit of the said stay order and that it was bound to pay not only misuse charges amounting to rs. it is well known 'an act of the court shall prejudice no man'.in the instant case on account of the passing of stay order at the instance of the appellant the respondent has suffered the said amount of rs 3,57,391.61 as misuse charges and the appellant obtained benefit on account of the stay by using the premises for non-residential purposes..........and continued to use as such in spite of a service of notice dated 9th july, 1972 requiring it to stop misuse till 1981 and thereforee it is liable to pay the entire misuse charges for the period ending 21st june, 1981. the learned counsel for the appellant however submits that the operation of the eviction order of the tribunal was stayed, that the appellant furnished the bank guarantee and thereforee it is neither liable to pay misuse charges nor liable to be evicted. he further submits that under section 14(11) of the act, the court has to give an option to the tenant either to pay misuse charges as compensation or to stop the misuse within such time as may be specified by the court. his argument is that as the appellant stopped misuse from 21st june, 1981 it is neither liable to.....
Judgment:

Sultan Singh, J.

(1) The tenant in this appeal under Section 39 of the Delhi Rent Control Act, 1958 (hereinafter refferred to as 'the Act') challanges the judgment and order of the Rent Control Tribunal dated 20th December 1978 passed under Section 14(l)(k) of the Act, directing the appellant to stop us ing the premises for any purposes other than residential or pay to the landlord or deposit in court a sum of Rs. 1,17,761.73 within three months and the landlord then shall get the breanches condoned from the Government. The Tribunal further ordered that in case the misuse was not stopped or the amount was not paid within the time prescribed, the appellant would be evicted.

(2) Briefly the facts are that the appellant, Curewell (India) Pvt. Ltd. on 21st November, 1969 took on rent the property at 72, Ring Road, Lajpat Nagar Iii New Delhi on a monthly rent of Rs. 2300.00 exclusive of electricity, water and other charges. The appellant was using the premises for residence- cum-office purposes. The respondent landlord served a notice dated 9th July, 1972 requiring the appellant to stop using the premises for office purposes as the said purpose was contrary to the terms of the lease of the plot executed between the landlord and the President of India. The appellant did not stop using the premises for office purposes. On 16th September, 1972 the landlord filed the eviction application claiming eviction under clauses (e) & (k) of the proviso to Section 14(1) of the Act. The Controller passed anorder of eviction under Section 14(l)(k) of the Act. On a

(3) The Tribunal determined that a sum of Rs. 1,17,761.73 as misuse charges for the period ending4th January, 1979 was payable by the appellant as compensation. The appellant was accordingly directed either to stop using the premises for any purpose other than residential or pay to the lardlord or deposit in court a sum of Rs 1,17,761 73 on account of misuse charges within three months failing which it was ordered that it would be liable to be evicted.

(4) The appellant on 34th February, 1979 filed this second appeal. It was admitted on 28th February. 1979 and the operation of the order of the Tribunal was stayed ex-parte. After notice this court passed the following order on 17th April, 1979 :

'C.M.No 450/79 : Heard. The stay order dated February 28, 1979 shall be confirmed provided the appellant furnishes bank guarantee to the extent of Rs. 1,17,761.73 in this court within one month and Rs.2300.00 per month towards rent from March. 1979 till the disposal of this appeal. The rent shall be deposited each month with the Rent Controller. If the aforesaid conditions are not complied with, the stay order shall be deemed to have been vacated. sd/- April 17,1979 Judge.'

(5) The appellant fornished the bank guarantee and he has also been paying monthly rent during the pendency of the appeal.

(6) The respondent on 24th April, 1981 filed an application (C.M. No. 1460 of 1981) for a direction to the Land & Development Officer to intimate the misuse charges for the period 14th January, 1979 onwards and to protect his interest as it would be beyond his capacity to meet the demand of the Land & Development Officer to pay the misuse charges. Notice was issued to the Land & Development Officer who filed a statement of account on 2nd December, 1981 claiming a sum of Rs. 3,57,391.61 as misuse charges for the period from 14th January, 1979 to 21st June, 1981.

(7) The respondent Sahib Singh had died on 11th September, 1981 during the pendency of this second appeal. His heirs were substituted vide order dated 2nd December, 1981.

(8) On 6th January, 1982 the appellant filed an application (C.M. No. 56 of 1982) slating that it had stopped using the premises for the purpose other than residential on 20th June, 1981 and since then the premises were being used by it for residential purposes only. It was further stated that it was not necessary for it to press the appeal. In other words, the appell ant filed the application withdrawing the appeal. Learned counsel for the respondent in his reply dated 11th January, 1982 stated that the appellant had enjoyed the benefit of the said stay order and that it was bound to pay not only misuse charges amounting to Rs. 1,17,761.73 as stipulated in the bank guarantee already furnished but also future damages/misuse charges which accrued during the operation of the stay order. The respondent claims a sum of Rs. 3,57,391.61 as misuse charges besides the sum of Rs. 1,17,761.73 paise determined by the Tribunal. The respondent also filed a statement showing details of the misuse charges. The appellant in his rejoinder disputed the right of the respondent to claim the misuse charges.

(9) As regards the withdrawal of the second appeal, it stood withdrawn as soon as the application withdrawing the appeal was filed by the appellant in this court on 6th January, 1982. After arguments on the question regarding liability of the appellant to pay the misuse charges for the period during which the stay order was in operation, learned counsel for the appellant on 4th March, 1982 slated that he wanted to withdraw the application (C.M. No. 56/1982) and argue the appeal. Learned counsel for the respondent then staled that the appellant could not in law withdraw the application (C.M. No. 56 of 1982) as the appeal stood dismissed when the appellant filed the application in court withdrawing the appeal. There is substance in the submission of the learned counsel for the respondent. The appellant withdraw the appeal on 6th January, 1982 by filing the said application and the appeal is deemed to have been dismissed as withdrawn on 6th January, 1982. The Act of withdrawal is complete as soon as the applicant intimate the court that he withdraws the appeal. In Shiv Prosad v.Durga Prasad and another, : [1975]3SCR526 it has been observed, 'Every applicant has a right to unconditionally withdraw his application and his unilateral act in that behalf is sufficient. No order of the court is necessary permitting him to withdraw the application. The court may make a formal order disposing of the application as withdrawn but the withdrawal is not dependent on the order of the court. The act of withdrawal is complete as soon as the applicant intimates the court that he withdraws the application'. Thus after withdrawing the appeal the appellant cannot be allowed to withdraw the application (C.M. No. 56 of 1982) withdrawing the appeal. The appeal thus stands dismissed as withdrawn.

(10) The crucial question however is about the liability of the appellant to pay the misuse charges. Learned counsel for the respondent submits that as the appeal has been withdrawn and it stands dismissed, it would mean that in fact no appeal was filed and as the appellant neither deposited misuse charges nor stopped misuse within three months of the order of the Tribunal it was liable to be evicted. He also submits that the appellant did not stop the user of the premises for purpose of office and continued to use as such in spite of a service of notice dated 9th July, 1972 requiring it to stop misuse till 1981 and thereforee it is liable to pay the entire misuse charges for the period ending 21st June, 1981. The learned counsel for the appellant however submits that the operation of the eviction order of the Tribunal was stayed, that the appellant furnished the bank guarantee and thereforee it is neither liable to pay misuse charges nor liable to be evicted. He further submits that under Section 14(11) of the Act, the court has to give an option to the tenant either to pay misuse charges as compensation or to stop the misuse within such time as may be specified by the court. His argument is that as the appellant stopped misuse from 21st June, 1981 it is neither liable to eviction nor to pay any misuse charges as determined by the Tribunal or as imposed by the Land & Development Officer.

(11) The Tribunal passed the impugned order on 20th December, 1978 directing the appellant either to pay misuse charges or stop misuse within a period of three months from that date i.e. upio 20th March, 1979. The appeal stands dismissed as withdrawn and thereforee the order dated 20th December, 1978 of the Tribunal has become final. As soon as an appeal is dismissed as withdrawn the stay order passed during the pendency of the appeal automatically stands vacated. Further when an appeal is dismissed as withdrawn it would amount as if no appeal was filed and impugned order of Tribunal dated 20th December, 1978 became final and executable. The appellant took advantage of the stay order and continued to misuse the premises. On account of the stay order the respondent has been burdened with rniluse charges amounting to Rs. 3,57,391.61 turn the period from 14th January , 197 to 21st June, 1981. Had there been no stay oF the eviction order by this court the respondent would not have been liable for the said amount of misuse charges. This court stayed the operation of the impugned order at the instance of the appellant. If an order was passed by the court at the instance of the appellant, the respondent should not suffer on account oF any act of the court. It is well Known 'An act of the court shall prejudice no man'. In the instant case on account of the passing oF stay order at the instance of the appellant the respondent has suffered the said amount of Rs 3,57,391.61 as misuse charges and the appellant obtained benefit on account of the stay by using the premises for non-residential purposes even after the notice served in 1972 and thereforee it is liable to pay the entire misuse charges. Thus I am of the view that the appel ant is liable to pay the sum of Rs. 1,17,761.73 as misuse charges for the period ending 14th January 1979 determined by the Tribunal and also the amount of 3.57,39161 for the period from 14th January. 1979 to 21st June, 1981 as imposed by the Land & Development Officer, New Delhi upon the respondent-landlord. The sum of Rs. 1,17,761.73 can berecovered by the respondent by getting encased the bank guarantee for Rs 1.17.761.73 furnished by the Central Bank of India on behalf of the appellant in pursuance of the order dated 17th April, 1979 of this court. Section 14(l)(k) read with Section 14(11) of the Act is as follows:

'14(1)Nothwithstanaing anything to the contrary contained in any other law or contract, no order or decree for the recovery oF possession of any premises shall be made by any court or Conroller in favor of the landlord against a tenant : Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely :- xxxxxx (k) that the tenant has, notwithstaning previous notice, used or dealt with the premises in a manner contrary to any condition imposed on the landlord by the Government or the Delhi Development Authority or the Municipal Corporation of Delhi while giving him a lease oF the land on which the premises are situated; xxxxxx (1) No order for the recovery oF possession of any premises shall be made on the ground specified in clause (k) of the proviso to sub-section (1) if the tenant within such time as may be specified in this behalf by the Controller, complies with the condition imposed on the landlord by anv of the authorities referred to in that clause or pays to that authority such amount by way of compensation as the Controller may direct.

(12) Under clause (k) a tenant is required to be served with a notice to stop ihe user of ihe premises in a manner contrary to any condition imposed on the landlord by the concerned authorities. If the tenant stopi the misuse and complies with the notice issued by the landlord the matter comes to an end but if the tenant notwithstanding the said notice continues to use or deal with the tenancy premises contrary to the terms of lease imposed upon the landlord by ihe concerned authorities, cause of action for eviction of the tenant accrues to a landlord. If a landlord institutes an eviction petition pleading prisuser of the premises, service of the notice requiring the tenant to stop the misuse and his failure to stop the misuse he is entitled to an order for eviction of his tenant under clause (k) of fne proviso to Section 14(l)oftheAct. Under Section 14(11) of the Act however, the tenant is given further protection if he complies with the conditions mentioned therein. Sub-section (II) of Section 14 of the Act prescribes two separate conditions. These conditions are (1) requiring the tenant to stop the misuse within a specified time to be fixed by the court and (2) payment to the authority concerned such amount by way of compensation as the court may direct. The word 'Or' has been used in sub-section (11) in the disjunctive sense. The cause of action to a landlord accrued when the tenant did not comply with the notice requiring him to stop misuser. The tenant is to be protected if he complies with both the conditions mentioned in Section 14(11) of the Act. If the tenant only stops the misuse within the time fixed by the court it would mean giving a premium or license to the tenant to misuse the leasehold property and to penalise the landlord with the amount of misuse charges which the Lesser of the plot in question may impose in terms of the lease terms or otherwise. In other words, if a litigation between a landlord and tenant under Section 14(l)(k) of the Act remains pending, say for five years, the tenant, according to the learned counsel for the appellant, may stop the misuse either of his own accord or on an order of the court within the specified time and he would be protected against eviction. If this argumt is accepted, it would mean that the landlord would be liable to pay the misuse charges for the said period of five years during which the litigation was pending. The landlord, with a view to protect his lease-hold rights in the property, would pay and would be liable to pay the misuse charges to his Lesser i.e. the concerned authorities. This is not the intention of the legislature. The intention of the legislature is that the tenant should initially stop the misuse as soon as a notice by the landlord is served requiring him to stop the user of the premises contrary to the terms imposed upon the landlord under the lease, or if the tenant fails, then according to the intention of legislature, the landlord would be entitled to evict the tenant. A further opportunity is provided in sub-section (11) of Section 14 of the Act to protect the tenant. It is well known that eviction proceedings usually take a long time. The tenant resists eviction. In the instant case notice requiring the appellant to stop the misuse was served in July, 1972. The appellant in the instant case stopped the misuse on 21st June, 1981 but he had used the premises for office purposes contrary to the terms of lease between the landlord and the Land and Development Officer during the period from July, 1972 to June, 1981. Considerable amount of misuse charges has been imposed by the Land and Development Officer on the landlord-respondent. It does not stand to reason that a landlord should suffer by paying misuse charges to the Land & Development Officer to protect his lease-hold rights and allow the tenant to use the premises contrary to the terms of the lease in spite of notice. Thus if a tenant wants protection against eviction he should be made liable to pay the misuse charges from the date of service of the notice requiring him to stop the misuse till the date of stopping the misuse. This can only be the true intention and interpretation of Section 14(11) of the Act. In other words, the word 'Or' used between the two conditions mentioned in Section 14(11) of the Act should be interpreted as and: If this interpretation not given it would mean that the landlord would not be able to evict the ienant in spite of misuse by him after notice and would be liable to pay the misuse charges on account of the acts of the tenant. Prior to the coming into force of the Rent Control Act a tenant was liable to eviction merely by determining the tenancy in one of the ways mentioned in Section Iii of the Transfer of Property Act. The tenant in the absence of the Rent Control Act had no defense against eviction. The Rent Control Act has been enacted w4h a view to protect a tenant against eviction but the intention of the Rent Control Law is not to encourage the tenant to violate the terms of lease between the landlord and the Land & Development Officer even after notice requiring him to stop the misuse and penalise the landlord. Thus I am of the view that a tenant should comply with both the conditions mentioned in Section 14(11) of the Act. However, a tenant may be allowed to continue use of he premises contrary to the terms of the lease between the landlord and the Land & Development Officer if the Land & Development Officer consents to such user on payment of misuse charges or otherwise. If the Land & Development Officer does not consent to misuse of the premises, the tenant must stop misuse at once. If the tenant either fails to pay the misuse charges from the date of notice till the stoppage of misuse or he fails to stop the misuse within the time specified by the court, he should be evicted. In other words if the tenant fails? to comply with any of the two conditions mentioned in Section 14(11) of the Act he would be liable to eviction. In the instant case the appeal stands dismissed as withdrawn. The appellant neither paid the misuse charges nor stopped the user of the premises contrary to the terms of the lease between the respondent and the Land & Development Officer within the time granted by the Tribunal. The appellant thereforee became liable to be evicted and to pay the misuse charges. As already stated the appellant stopped the misuse of the premises but he had not paid the misuse charges. As already determined a sum of Rs. 4,75,153/34 is payable as misuse charges. The appellant can be protected against eviction under Section 14(1)(k) of the Act, if he also pays the said amount. The sum of Rs. 1,17,761.73 may thus be recovered by the Registrar of this court by encashing the bank guarantee. The balance amount of Rs. 3,57,391 61 may be deposited by the appellent with the Additional Controller where eviction proceeding were pending within a period of four months from today. If he fails to deposit the said sum of Rs. 3,57,391.61 as above he would be liable to be evicted from the premises in suit. If he deposits the said amount, it would be paid to the respondent.

I, hold that- i) the appellant is liable to pay Rs. 1,17,761.73 on account of misuse charges for the period up to 14th January, 1979 as determined by the Rent Control Tribunal which amount may be recovered by encashing the bank guarantee. The Registrar of this court is directed to encash the bond of bank guarantee dated 18th May, 1979 immediately and the said amount be paid to the respondent-landlord towards the amount of misuse charges due from and payable by the appellant. ii) The appellant is directed to. deposit a sum of Rs. 3,57,391.61 as misuse charges for the period from 14th January, 1979 to 21st June. 1981 within a period of four month? from today as above. lf the appellant deposits the said amount it will be paid to the respondent and the appellant would not be liable to eviction. If the appellant fails to dspositthe said amount as directed above it would be evicted from the premises in suit after the expiry of four months from today. iii) The parties are directed to appear before the Registrar on 24th March 1982 for further action. No order as to costs.


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