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India Exports House Pvt. Ltd. Vs. J.R. Vohra - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberCivil Miscellaneous (Main) Appeal No. 174 of 1982
Judge
Reported inAIR1983Delhi167; 23(1983)DLT23; 1983(4)DRJ56
ActsDelhi Rent Control Act, 1958 - Sections 21; Constitution of India - Article 227
AppellantIndia Exports House Pvt. Ltd.
RespondentJ.R. Vohra
Advocates: L.M. Sanghvi,; R.L. Kohli,; S.M. Grover and;
Cases ReferredJang Singh v. Brij Lal and
Excerpt:
.....21 fur the subsequent period can be granted. the warrants of possession were issued by the learned rent controller upon being fully satisfied that it was a case where the petitioners had been sufficiently notified as regards the intention of the respondent and it is no requirement of law that a notice must be issued by the rent controller in eviction proceedings under section 21. the respondent had written a registered a. it is perfectly open to the controller even at the execution stage to examine whether section 21 is a make believe and vitiated by fraud and collusion. of course, there will be a presumption in favor of the sanction being regular, but it will still be open to a party to make out his case that in fact and in truth the conditions which make for a valid sanction were not..........a petition under section 21 of the delhi rent control act, 1958 (the act). but the additional rent controller by an order of 2 5.1979 declined the permission because the letting was for commercial-cum-residential purposes. the respondent again filed a petition under section 21 of the act which was fixed before mr. j.d.kapur, the then rent controller. the respondent concealed from him the earlier rejection of a similar application and thus com- mitted fraud on the court and maneuvered to obtained permission under section 21 of the act on 10.5.1979. the tenancy in the aforesaid circumstances could not be considered a limited tenancy. yet the respondent filed an execution application before the rent controller on 1.7.1982. on the same day the nazir was directed to report and the rent.....
Judgment:

M.L. Jain, J.

(1) The petitioners M/s. India Export House Private Limited allege that they took on rent the property bearing No. 34, Paschmi Marg, Vasant Vihar, New Delhi, on 1.5.1979 from the respondent J.R. Vohra and paid the rent for May in advance. The respondent filed a petition under section 21 of the Delhi Rent Control Act, 1958 (the Act). But the Additional Rent Controller by an order of 2 5.1979 declined the permission because the letting was for commercial-cum-residential purposes. The respondent again filed a petition under section 21 of the Act which was fixed before Mr. J.D.Kapur, the then Rent Controller. The respondent concealed from him the earlier rejection of a similar application and thus com- mitted fraud on the court and maneuvered to obtained permission under section 21 of the Act on 10.5.1979. The tenancy in the aforesaid circumstances could not be considered a limited tenancy. Yet the respondent filed an execution application before the Rent Controller on 1.7.1982. On the same day the Nazir was directed to report and the Rent Controller directed it to be registered and certified copy of the plan to be filed on 16.7.1982. On 6.7.1982, on receiving the plan, the Rent Controller cancelled the date 16.7.1982 and directed issue of warrant of possession, ex parte without affording to the petitioners an opportunity to show cause. A civilian force of about more than 100 persons and undesirable characters forced entry into the tenanted premises on 9.7 1982 and manhandled and threw out the occupant and caused loss of and damage to the property of the petitioners. By this petition, it is prayed that the order of the Rent Controller dated 1.7.1982 and 6.7.1982 along with the warrant of possession be quashed and a direction be issued that the petitioners are placed in possession and status quo ante as existed on 6.7.1982 be restored.

(2) Upon Cm 906/82, a local commissioner was appointed. The report of the commissioner is on record.

(3) The respondent contends that the order was an appealable order under section 38 of the Act and a second appeal is also provided on a substantial question of law. But the petitioners have chosen to short-circuit the prescribed appellate remedy by invoking the jurisdiction of this court under Article 227ofthe Constitution. Since the statutory remedies which were equally efficacious have not been availed of, the petition is not maintainabl.

(4) The respondents further state that the premises were let out to the petitioners for purposes of residence and no other and that too only of C.L. Sachdeva the Chairman and Director of the company. Clause 4 of the lease deed specifically mentions that the premises were being let out for residential purposes only. It was also provided in the lease deed that if the premises were not vacated on the expiry of three years period, the respondent would be entitled to receive damages at the rate of Rs. 500.00 per day. A letter dated 2.5.1979 addressed to the petitioner company placed the position beyond doubt. Rent for May, 1979 was never paid. An amount of Rs. 25,000.00 as security was advanced. Another amount of Rs. 50,000.00 was advanced for providing additional fixtures and the said amount of Rs. 50,000.00 was to be adjusted and has in fact been adjusted at the rate of Rs.l5,000.00 per month out of the rents due for the month commencing 1.6.1969. The petitioner Sachdeva was a party to the proceedings and was present before the Rent Controller. He was also personally present in the court of the Additional Rent Controller when the first petition was withdrawn. The premises were never let out for purposes other than residential, and no fraud played on the court. Statement of Sachdeva petitioner No. 2 was also recorded, wherein he categorically admitted that the premises were taken on rent by him for a limited period of three years and for residential purposes only. The tenancy was to commence with effect from 1.6.1969. The petitioner No. 2 was free not to make any statement on 10.5.1979 and there was no compulsion on him to make the said statement. The letter of 2.5.1979 is clear in terms and even otherwise, the law is well settled that even in respect of continuing tenancy permission under section 21 fur the subsequent period can be granted. There is no bar in law for moving a second application under that section. The warrants of possession were issued by the learned Rent Controller upon being fully satisfied that it was a case where the petitioners had been sufficiently notified as regards the intention of the respondent and it is no requirement of law that a notice must be issued by the Rent Controller in eviction proceedings under section 21. The respondent had written a registered A.D. letter to the petitioners as far back as 1.3.1982 to vacate the premises. The said letter was followed by another request made on 5.5.1982 because there was no reply received from the petitioner to the earlier letter dated 1.3.1982. The second communication was also sent by registered A.D. post. The petitioners thus had sufficient notice.

(5) The order of the Rent Controller directing recovery of possession is challenged in this petition under Article 27 of the Constitution on the ground that the order was made without notice to the petitioners to raise objections, if any. The respondents contends that the petitioners should have first approached the Rent Control Tribunal before approaching the High Court. It is true that the party should first exhaust the alternative remedies available to it, but is not an inexorable rule and the court can exercise its power of superintendence even where the party has not exhausted alternative remedy.

(6) The crucial question in this petition is whether the warrant of recovery of possession can be issued without notice to the tenant In S.B. Noronah v. Prem Kumari Khanna, : [1980]1SCR281 , while reversing Kasturi Lal v. Shiv Charan Das Mathur, 1976 Rcj 582, the Supreme Court held that the Controller exercises an important regulatory function on behalf of the community. The fact that a landlord and a potential tenant together applied setting out the formal ingredients of Section 21 of the Act does not relieve him of being vigilant to enquire and satisfy himself about the requisites of the landlord's non-requirement for a particular period. It is perfectly open to the Controller even at the execution stage to examine whether Section 21 is a make believe and vitiated by fraud and collusion. In a manner so characteristic of him, Krishna lyer, J. observed : The Controller must satisfy himself by such inquiry as he may make, about the compulsive requirements of that provision. If he makes a mindless order, the court, when challenged at the time of execution, will go into the question as to whether the twin conditions for sanction have really been fulfillled. Of course, there will be a presumption in favor of the sanction being regular, but it will still be open to a party to make out his case that in fact and in truth the conditions which make for a valid sanction were not present'. These observations clearly mandate that the Controller is empowered to go behind the sanction and hold an inquiry which can do only if he issues a notice to show cause against the execution.

(7) As against this judgment, reliance was placed by the respondent upon N.S.Parathsarlhy and others v. Padmini Devi and another, 22 (1982) Dlt 48, wherein Yogeshwar Dayal.J. observed the Section 21 contemplates that on application being made for possession, notwithstanding anything contained in Section 14 or in any other law, the Rent Controller may place the landlord in vacant possession of the premises. No fresh order for ejectments even is contemplated. As soon as the application is filed, the section contemplates issuance of warrant for delivery of possession to the landlord. This itself shows that the jurisdiction at that stage, which is to be exercised by the Controller, is in the nature of a court executing its earlier order and that the executing court cannot go behind the decree and cannot entertain any objection that the decree was incorrect in law or on facts. But having said so, what did the learned Judge do He proceeded to examine the merits of the case. But at no stage has he ruled and certainly could not have done so in face of the decision of the Supreme Court that no inquiry can be held at the execution stage or that a sanction if questioned on the ground of fraud or collusion can withstand invalidity. In the case before him, when the petitioner filed an application before the Rent Controller, he directed issue of notice to the respondent. After some time objections were filed on behalf of the tenant to the execution that the parties had agreed to a fresh lease for four years and under the circumstances the petitioner should stick to the original undertaking and enter into the fresh contract. The Rent Controller held that 'in view of the authority in : [1980]1SCR281 the allegation of the respondent requires trial'. The learned Judge held that the objection raised by the tenant did not come within the rule laid down by the Supreme Court in Noronh's case and the trial court ought to have dismissed the objection and should have ordered issue of warrant of possession.

(8) I am afraid, both on facts and on law. N.S. Parthasarathy's case does not support the proposition that as soon as an application for recovery of possession is made in case of a limited tenancy under Section 21 of the Act, the warrant of possession should issue without an opportunity being given to the petitioner to show cause whether the sanction was obtained by fraud or collusion or whether the order of sanction was mindless order. If an enquiry before recovery of possession is contemplated, then no enquiry can be held without a notice to the opposite party.The duty of the court to give a notice cannot be satisfied or circumvented by a notice given by the landlord to vacate after the expiry of the period of the leaser

(9) The learned counsel for the respondent however, added that in this case the possession has already been taken over and the requirements of natural justice ran be met by giving a post-decisional hearing. I am afraid a post-decisional hearing in a case of this cannot prove remedial. To there out the occupant on the road and make him move to other premises then to hear his objections is to prejudge the matter and will do violence to the provisions of law interpreted by the Supreme Court. If a party is required to be heard before giving vacant possession under the law, then not to do so is not a mere violation of principles of natural justice, but it is a violation of the status itself Post-decisional remedial hearing is permissible in cases in which the action taken is prevent and could not have brooked and and delay without irreversible results. Eviction of a tenant is not at all an urgent matter and he cannot be ousted on the assurance that he will be heard after the damage has been done. The principles of natural justice cannot be allowed to be bypassed in this matter. Speed injustice is desirable but haste is deprecable. To issue a warrant for recovery of possession without a show cause notice and without holding an adequate inquiry into the objections if any, of the tenant is a mistake made by the court has made a mistake, the mistake should be rectified by the court and the party should be relegated to the position as it stood before. Actus curiac neminem gravabit act of the court should do no harm to the litigant Jang Singh v. Brij Lal and others, : [1964]2SCR145 .

(10) I, thereforee, accept this petition, set aside the order under revision and direct that the Rent Controller shall have the possession restored to the tenant, give him an opportunity to raise any objections and decide them in accordance with the law laid down by the Supreme Court and then direct or refuse recovery of possession envisaged in the said section 21. There shall be no costs.


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