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Flowmore Private Ltd. Vs. Keshav Kumar Swarup - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 1145 of 1980
Judge
Reported inAIR1983Delhi143; 23(1983)DLT54; 1982RLR742
ActsDelhi Rent Control Act, 1958 - Sections 4(1) and 14(1); General Clauses Act, 1897 - Sections 10
AppellantFlowmore Private Ltd.
RespondentKeshav Kumar Swarup
Advocates: B.R. Iyengar,; Harnam Das,; L.M. Sanghvi,;
Cases ReferredJai Nath Gupta & Company vs. Shri Mahabir Prasad
Excerpt:
.....filed within 15 days from date of service - application for leave to defend filed after 20 days - rent controller not an office or court - application could be filed on reopening of courts - held, application of petitioner for leave to contest within time and petitioner allowed leave to appear and contest eviction petition. - - general clauses act and, thereforee, a decision which was pronounced en a particular date was well within time or not. he also submitted that if the surrounding circumstances are taken into account like locality and situation of the premises, the aforesaid clause should only be construed as showing letting for residence only. the lease described the premises as house and the question really turned upon the meaning of the words, for his own use'.there were..........act, (hereinafter referred to as 'the act') against an order dated 28th august, 1980 passed by the rent controller, delhi dismissing an application for leave to contest the eviction proceedings filed against them by the respondent/landlord on the ground of bona tide personal requirement. (2) on or about 15th may, 1980, respondent shri keshav kumar swarup filed a petition for eviction of the appellants under clause (e) to subsection (1) of section 14 read with section 25b of the act inter alias on the following grounds: the petitioner is the owner of the premises in dispute. the petitioner's family consists of wife, son and a daughter. the petitioner is a businessman and director of sugar mill and vanaspati plant run under the name and style of 'swarup vegetable products industries ltd.'......
Judgment:

Yogeshwar Dayal, J.

(1) This is a petition for revision on behalf of the tenant under the proviso to Sub-section (8) of Section 25-B of the Delhi Rent Control Act, (hereinafter referred to as 'the Act') against an order dated 28th August, 1980 passed by the Rent Controller, Delhi dismissing an application for leave to contest the eviction proceedings filed against them by the respondent/landlord on the ground of bona tide personal requirement.

(2) On or about 15th May, 1980, respondent Shri Keshav Kumar Swarup filed a petition for eviction of the appellants under clause (e) to Subsection (1) of Section 14 read with Section 25B of the Act inter alias on the following grounds: The petitioner is the owner of the premises in dispute. The petitioner's family consists of wife, son and a daughter. The petitioner is a businessman and Director of Sugar Mill and Vanaspati Plant run under the name and style of 'Swarup Vegetable Products Industries Ltd.'. This factory has an office at Delhi in Delite Building at Asaf Ali Road, New Delhi. Besides his other business activities, the petitioner is looking after the Delhi Office. The son of the petitioner is looking after the Delhi Office. The son of the petitioner is at present getting education at the Punjab University at Chandigarh, doing Master of Business Administration Course. This is the final year of the son and he has also to live at Delhi to look after the Delhi Office and has also to settle in Delhi. Neither the petitioner nor any member of his family has got any other suitable house in Delhi, excepting the premises in dispute, where the petitioner and his family can live. The petitioner is a heart patient and on account of lack of medical facilities at Muzaffarnagar, has to come to Delhi very frequently for consultation and treatment. The Doctor at Muzaffarnagar has advised the petitioner to shift to Delhi as the medical treatment available at Muzaffarnagar for a heart patient is grossly inadequate. There is no 'Intensive Care Unit' in the Civil Hospital at Muzaffarnagar, which can be availed of in the event of an emergency. The daughter of the petitioner has been married recently and she with her husband are also visiting Delhi off and on. The entire family of the petitioner has to settle down at Delhi.'

(3) In paragraph 14 of the application, it was averred that the premises were let to the appellants with effect from 1st August, 1974. No copy of the lease deed or the agreement was filed with this petition. The petitioners, M/s. Flowmore Pvt. Ltd. were served with the summons as prescribed by 56 Sub-section (4) of Section 25B read with third schedule to the Act on 10th ' June, 1980 and filed an application accompanied by an affidavit on 30th June, 1980 for leave to contest the eviction petition.

(4) In the application for leave to contest, all the requirements were seriously disputed and the allegations that respondent/landlord was keeping ill health and that medical advice was not available at Muzaffarnagar were denied. It was also denied that the petitioner/landlord has any office at Delhi or has any work at Delhi. It was inter alias pleaded that the petitioner/ landlord has a distant relation with the owners of Delite Cinema in Delhi and thereforee, introduced to show that he has a office there. In fact, he has no office of his own there and has nothing to do with Sugar Mill and Vanaspati Plant allegedly run in the name and style of Swarup Vegetable Products Industries Ltd. It was further averred that even if the petitioner/landlord is a Director, it does not give him any right to manage the day-to-day affairs of that Company and the landlord has not intentionally given any particulars or details of his alleged illness. He further alleged that the petition had been filed merely because the respondent/tenant after expiry of the lease refused to increase the rent. It was also alleged that the petition was malafide. It was further averred that the alleged need of the son and the daughter was only a made-up story. It was also averred that the petitioner-landlord had always been living at Muzaffarnagar with his family where they have palatial buildings and the landlord does not need any accommodation in Delhi.

(5) It was also pointed out in the leave to defend application that the premises in dispute were taken for residential-cum-commercial purposes and as such the question of eviction on the ground of personal bona fide requirement did not arise. It was averred that clause (5) of the lease deed executed between the parties reads as under :-

'THATthe leasee shall use the premises for the residence and personal use of Directors and/or their relatives and for the purposes of the Company.'

(6) It was also averred that since the inception of the tenancy, business of the petitioner-company or its allied concerns was being carried on to the knowledge of the respondent-landlord who had in his notice mentioned misuse and had also reserved his right in the eviction petition to take separate proceedings fur misuser.

(7) Learned Rent Controller felt that the solitary question which-calls for determination and decision of the application for leave to contest turns on the interpretation of the aforesaid clause (5).

(8) Learned Rent Controller while dealing with the aforesaid clause observed as under :-

'ACCORDINGto the counsel for the respondent the meaning of the words turn the purpose of the Company' obviously is that for putting the premises for commercial use of the company. As is apparent from the above wordings, in the clause itself, the main and dominant purpose was the use of the premises for the residence and personal use of directors and/or their relatives. Had there been an intention to give the premises for commercial purposes that purpose should have been pronouncedly mentioned in the clause. What has been specifically mentioned in this clause of the rent agreement is that the premises are to be used for the residence and personal use of the directors and/or their relatives. The respondent has no where stated in the affidavit as to what kind of business is being run in the premises. The respondent has also not taken the plea whether any part of the premises is being used for office or any other purpose than the residence. Simply because, the words for the purpose of company were included in this clause, does not mean that the premises were let out to the company for commercial purpose. The premises were let out to the company mainly for the residence and personal use of the directors and other guests. Meaning of the words 'for the purpose of the company' when read with the preceding words, means that the premises have to be used for the purpose of the residence of his directors or other guests or relatives and not for running the office or for using the premises for commercial purpose. Since the fact remains that the premises have been used and are being used for the residential purposes and no part of the premises is being used for the office or any other purpose than the residence, the respondent cannot be granted the leave on this ground.'

(9) Learned Rent Controller also hold that this court has taken the view in this case reported as Gurditta Mal v. Bal Sarup, : AIR1980Delhi216a that in view of the third schedule to the Act, a period of 15 days limitation is prescribed for filing an application accompanied by an affidavit for leave to appear and cotest the ejectment application as contemplated by Section 25B of the Act and that the provisions of Limitation Act do not apply and since the application was filed more than 15 days of the date of service, the application for leave to contest was barred by time.

(10) I propose to deal with the latter point first. It is correct that in the aforesaid case of Gurditta Mal (supra) a Division Bench of this Court consisting of Sachar and Harish Chandra, JJ. had given a finding in the judgment that such an application for leave to appear and contest has to be filed within 15 days from the date of the service and that Limitation Act, namely. Section 5 of the Limitation Act cannot be resorted to.

(11) It however, transpires that the Rent Controller, Delhi wrote a letter to the High Court of Delhi and the High Court vide its reply dated 3/4th June, 1980 wrote back to the Rent Controller, Delhi through the District Judge as under: -

'Iam directed to refer to your letter No. 1830/Vacation, Gas, dated 20-5-80 on the above subject and to say that Hon'ble the Chief Justice and Judges of this Court have been pleased to order that the following Addl. Rent Controllers may be detained during the summer vacation 1980 for the period noted against each for attending urgent matters relating to cases of Delhi Rent Control Act. Shri Shiv Charan from 2-6-80 to 9-6-80. Shri A.K. Shrivastava from 10-6-80 to 23-6-80. Shri Brijesh Kumar from 24-6-80 to 29-6-80. Their Lordships have been further pleased to order that the Rent Controller be given direction for passing an order authorising Addl. Rent Controllers to Act as Rent Controller Delhi during the period as required u/s. 35(2) of the Delhi Rent Control Act and giving direction to deal with the specific matters. I am to add that the above judicial officers might be allowed to avail of compensatory leave during the year 1980 for the minimum of day they would actually work during the summer vacation......Yours faithfully sd/- RameshSharma,AR'

On receipt of this letter, the Rent Controller passed an authorisation order which reads as under :-

'INexercise of my powers u/s. 35(2) of the Delhi Rent Control Act, I hereby order that the following Addl. Rent Controllers shall perform and exercise the powers of the Rent Controller Delhi during the summer vacation 1980 for the period mentioned against their name. However, the Addl. Rent Controller shall sit only to do urgent matter relating to the deposit of rent against order under Section 15 of the Act and also attend to all urgent matter relating to fresh petition u/s. 44 of the Delhi Rent Control Act and pending execution matter. However, they shall not entertain fresh petition under the Delhi Rent Control Act including the execution application. Shri Shiv Charan 2-6-80 to 9-6-80. Shri A.K. Shrivastava 10-6-80 to 23-6-80. Shri Brijesh Kumar 24-6-80 to 29-6-80.'

(12) It will thus, be noticed that for the period from 2-6-80 to 29-6-80, the court of Rent Controller was closed and three Addl. Rent Controllers were detained by the R.ent Controller for attending urgent matters as detailed by him which related only to the deposit of rent against order under Section 15 of the Act and also attend to all urgent matters relating to fresh petition under Section 44 of the Act and pending execution matter. However, they were debarred from entertaining fresh petition under the Delhi Rent Control Act including the execution application. It will thus, be noticed that the only urgent matters which the Addl Rent Controller was authorised to deal with were relating to (1) deposit of rent under Section 15 of the Act (2) fresh petition under Section 44 of the Act and (3) pending execution matters. Thus, the Addl. Rent Controllers were to do this aforesaid limited work otherwise their courts were closed. As I have noticed earlier, the petitioners were served only on 10th June, 1980 and it filed an application for leave to defend on the re-opening of the courts i.e. on 30th June, 1980. It is true that Section 5 of the Limitation Act will not be applicable to the proceedings before the Rent Controller, as the Rent Controller is not a court within the meaning of the Limitation Act, but the question which immediately arises is, whether provision of Section 1 Oof the General Clauses Act, 1897 (Act No. 10 of 1897) would be applicable or not to the Rent Controller or the Additional Rent Controllers appointed under the Delhi Rent Control Act. Section 10 of the General Clauses Act, 1897 provides as under :-

'10(1)Where, by any Central Act or Regulation made after the commencement of this Act, any act or proceeding is directed or allowed to be done or taken in any Court or office on a certain day or within a prescribed period, then if the Court or office is closed on that day or the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the court or office is open : Provided that nothing in this section shall apply to any act or proceeding to which the Indian Limitation Act, 1877, applies. (2) This section applies also to all Central Acts and Regulations made on or after the fourteenth day of January, 1887.'

(13) There can be no doubt that the Act is Central Act. But the question is, whether the Controller or the Additional Rent Controllers appointed under the Act are a court or an office within the meaning of Section 10(1) of the General Clauses Act. It appears to me that the court of Rent Controller is certainly not an office. But the question is, can it be considered as a court within the meaning of Section 10 of the General Clauses Act. The powers of the Controller are contained in Sections 36 and 37 of the Act.

(14) A similar question for another Tribunal with similar powers came up for consideration before the Supreme Court in the case reported as Vishwamitra Press (Karyalaya) Kanpur v. Workers of Vishwamitra Press, : (1953)ILLJ184SC and the question that arose before the Bench consisting of Mahajan, S. R. Dass and Bhagwati, JJ. was whether an Industrial Tribunal appointed under the U. P. Industrial Disputes Act (28 of 1947) was a Court within the meaning of Section 10 of U. P. General Clauses Act and, thereforee, a decision which was pronounced en a particular date was well within time or not. Section 10 of the U. P. General Clauses Act is in pari materia within Section 10 of the General Clauses Act. It was argued before the Supreme Court that an Industrial Court was not a Court within the meaning of Section 10 of the U.P. General Clauses Act. It was also argued there that a Court could only be construed to mean a Court in the hierarchy of the civil courts and the Industrial Tribunal did not fall within that category. This submission was repelled by the aforesaid Bench of the Supreme Court. A similar view was also taken by Venkatarama Ayyar, J. speaking for the Supreme Court in the case of (H. H. Raja) Harinder Singh v. S. Karnail Singh and others, : [1957]1SCR208 and the question arose therein was whether Section 10 of the General Clauses Act was applicable to a Tribunal appointed under the Representation of the People Act, 1951. It was held that: Broadly stated, the object of S. 10 is to enable a person to do what he could have done on a holiday, on the next working day. Where, thereforee, a period is prescribed for the performance of an act in a Court or office, and that period expires on a hiday, then according to the section, the act should be considered to have been done within that period, if it is done on the next day on which the Court or office is open. For that section to apply, thereforee, all that is requisite is that there should be a period prescribed, and that period should expire on a holiday'. The aforesaid reasoning of the Supreme Court would apply to the Controller and Additional Rent Controllers appointed under the Act. I would, thereforee, hold that the Controller and Additional Rent Controllers within the meaning of Section 10 of the General Clauses Act.

(15) The Court of Controller and Addl. Rent Controllers were closed during the period 2-6.80 to 29-6-80 and the Addl. Rent Controllers were only authorised to do certain specified urgent matters and application for leave to appear and contest in eviction petition was not a matter which they were authorised to entertain during this period. Thus, the application could be filed on the re-opening day. It was so filed in this case on the opening day. Learned Rent Controller was thus) in error for holding that the application was barred by time. I would, thus, hold that the petition for leave to appear and contest the eviction petition was within time. On merits of the question, whether the leave to appear and contest should have been granted, I had 60 already extracted the reasoning of the learned Rent Controller in para 4 of his judgment declining the leave.

(16) The view taken by the learned Rent Controller was again stressed before me by Dr. Singhvi, learned counsel for the respondent/landlord. He inter alias submitted that the property in disputes is situated in a residential colony where user for the purpose other than residence is prohibited under the Master Plan and the Zonal Development Plan and thereforee, the property could not be let out for any purpose other than residence. He submitted that clause 5 of the lease should be interpreted in this light. He also submitted that if the surrounding circumstances are taken into account like locality and situation of the premises, the aforesaid clause should only be construed as showing letting for residence only.

(17) In this connection Dr. Singhvi relied upon the decisions reported as Mrs. P. N. Karkhanis v. Mr. P.N. Chopra, : 13(1977)DLT22 , Smt. V.L. Kashyap v. B.P. Puri, : 12(1976)DLT369 and B.M. Mutto and another v. Dr. TK. Nandi, 15 (1979) Dlt 26 and adecision of Kirpal J. in Civil Revision No 792 of 1980, M/s. Mehra Mehra v. Dr. (Mrs.) Sant Kaur Grewal, decided on 8th December, 1981. So far as the first three decisions are concerned, they have no relevancy at all because they relate to proceedings for eviction under Section 14A of the Act where purpose of letting is not relevant at all. Regarding the case of M/s. Mehra Mehra (supra), it appears from the judgment that according to lease deed the house had been taken by the tenant for his own use. The lease described the premises as house and the question really turned upon the meaning of the words, 'for his own use'. There were other clauses like clauses 8, 10 and 11 in the lease deed also which are extracted below : Clause 8 ; that the lessee shall use the premises for his own use. Clause 10 : that the lessee shall comply with all the rules and regulations of the local authorities whatsoever with relation to the demised premises. Clause 11 : that the lessee shall not carry on any constructional additions or alterations to the building, layout fittings without the written consent of the Lesser but have the right to install the domestic appliances where ever and whenever necessary at their own cost and also have the right to remove the same at the before the time of termination of the lease.'

(18) It was in the light of the combined effect of all these clauses that the learned Judge took the view that premises in that case were really let only for residence.

(19) Dr. Singhvi then submitted that the expression, 'for the purpose of Company' should be read with the expression, 'use the premises for the residence and personal use of the Directors and their relatives'.

(20) On the other hand the contention of Mr. B.R.L. Ayangar, learned counsel for the petitioner/tenant was that first part of this clause 5 talks about the user of the premises for residence whereas the later part, namely, ''for the purpose of Company' is very wide and included user for any purpose of the Company and not necessarily for residence only. It will be noticed that in the present case there are no clauses like clauses 8, 10 and 11 as noticed in the case of M/s Mehra Mehra decided by Kirpal,J. we are thus, left only with this clause 5. It is also clear that when there is a written agreement regarding purpose of letting, a reference to situation or locality or how the premises have been built cannot normally be looked into. Here the letting purpose has been specifically mentioned. Again in the present case, there are no clauses like clauses 8, 10 and 11 extracted earlier as noticed by Kirpal, J. in the case of M/s Mehra Mehra.

(21) The clause 5 is such that it is susceptible to the view which is being propounded on behalf of the tenant. thereforee, on this short ground alone, leave to defend should have been granted. I may also mention that the fact that there was a written agreement with the aforesaid clause was not even disclosed in the eviction application. Even in para 4 which related to whether the premises are residential or not, it was mentioned 'Residential' yet in para 18 which was to contain grounds for eviction of a tenant, it was not even mentioned what was the purpose of letting. I have already reproduced above para 18(a). This averment is a condition precedent for the Controller to have jurisdiction to entertain a petition for eviction on the ground of bona fide personal requirement under clause (a) to the proviso to Sub-section (1) of Section 14 of the Act and on this ground also leave to defend and contest the eviction petition should have been allowed.

(22) Besides, the case of the landlord regarding his need to shift to Delhi both on grounds of business as well as health was such which requires consideration. Again the question whether the premises would be required for the son of the landlord needed to be considered. Sachar,J. had in a similar case taken the view that in the matters of this type of ground, leave to defend ought to have been granted. Reference in this connection may be made to the decision of Sachar, J. in M/s Jai Nath Gupta & Company vs. Shri Mahabir Prasad, Civil Revision No. 641/78 decided on 2nd January, 1978. In this case landlord's case was that he wanted to shift from Narnaul to Delhi as he had closed his business at Narnaul and started business in Delhi. Sachar, J. took the view that it requires evidence to decide and the learned Judge had set aside the order dismissing the leave application and had granted leave to contest.

(23) In view of the aforesaid reasons, the revision petition is accepted and it is held that the application of the petitioner for leave to contest was within time and the petitioner is allowed leave to appear and contest the eviction petition on the following two points : (i) Whether the premises were let for the purpose of residence only (ii) Whether the landlord bona fide requires the premises for his own occupation as residence for himself and/or any family members dependent upon him.

(24) Parties are accordingly directed to appear before the Rent Controller on 3rd September, 1982 when the petitioner would file written statement in the light of the aforesaid observations and thereafter the Rent Controller will proceed to decide the petition with due expedition. Nothing stated in this judgment will be construed as a matter of opinion while deciding the controversy on merits.

(25) Parties arc, however, left to bear their own costs in the present proceedings.


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