S.B. Wad, J.
1. This is the landlord's petition against the order of Additional Rent Controller, passed on 29th August, 1981. The order was passed in the execution proceedings for possession under Section 21 of the Delhi Rent Control Act. The learned Rent Controller held that the eviction order was contrary to the judgment of the Supreme Court in S.B. Noronah v. Prem Kumari : 15(1979)DLT305 . The Rent Controller dismissed landlord's execution application.
2. The impugned order is challenged on the following grounds :
(a) The Rent Controller has not correctly appreciated the judgment of the Supreme Court in the above case. The Division Bench judgment of this Court reported in Vijay Kumar v. Inder Sain, : AIR1982Delhi260 (D.B.) has correctly construed the said judgment.
(b) The Rent Controller has failed to appreciate that on the date of the execution the petitioner was already transferred to Delhi, his wife had taken up a job in Delhi and his sons were admitted to Delhi school. The justification for the shorter tenancy of two years was fully established on the date of the execution application.
(c) The objections filed by the tenant against the execution application were barred by the principles of resjudicata. The tenant had refused to accept the notice of the execution application. When he was proceeded exparte he made an application for the review of the said order. That application was dismissed by the Rent Controller. The said order has become final.
3. In reply the counsel for the tenant submits that the landlord has not stated any specific reason why a shorter tenancy for two years was being created in 1978. He further submits that ever since the house was constructed the landlord has never stayed in it. It was let out from time to time at higher rents. The eviction order was secured by the landlord fraudulently. The Rent Controller was right in holding that the eviction order was contrary to the decision of the Supreme Court in Noronah's case.
4. Petitioner is the owner of house No. J-8A, Green Park, New Delhi. On 5-7-1978 the premises were let out to the tenant for two years under Section 21 of the Act. The rental of the premises was Rs. 1300/- per month. At the time of the creation of the tenancy the petitioner was transferred to Jammu and Kashmir. He is Lt. Col., in Army. He was transferred to Delhi on 3-3-80 in the Army Headquarters, New Delhi. He joined the Headquarters on 11-6-80. On 4th July, 1980 the tenancy of two years had come to an end. The petitioner, thereforee, moved the Rent Controller court for an order for the possession of the premises. That application was made on 6-7-80. Summons were issued for 28-7-80. The tenant refused to accept the summons. thereforee, warrants of possession were ordered by the Rent Controller, on 19-9-80. Although the tenant had denied the knowledge of the summons, he filed an application on 20-9-80 praying for a review of the order for warrants of possession. That application was dismissed by the Rent Controller on 14-11-1980. The present objections to the execution proceedings were filed by the tenant on 29-11-80. The tenant had not made any payment of the rent from September, 1980 and the landlord had to file a suit for recovery of about 35,000/- rupees of the arrears of rent. From October 1981 till date again no payment of rent was made by the tenant. An additional amount of Rs. 22,000/- by way of arrears of rent had also become due by the time the petition was heard by me.
5. The learned Rent Controller held that order 21 of the C.P.C. does not apply to proceedings under Section 21 of the Delhi Rent Control Act. He further held that the tenant's objections were not barred by the principles of resjudicata. He then held that there was nothing in the original petition of the landlord to show as to why he did not require the premises for a period of two years. thereforee, requirements of law as laid down in Noronah case were not fulfillled. He also held that the judgment of this Court in Nanda Brothers, : 20(1981)DLT49 was distinguishable on facts.
6. The judgment in Noronah case was delivered by Supreme Court in 1978. The tenancy in the present case was created on 5-7-78. The Supreme Court has fully expounded the object of Section 21, conditions which should be specified before the benefit is claimed by the landlord and duties of the Rent Controller while deciding the matter and giving decision under Section 21. The well established principle of law that fraud vitiates all proceedings was made applicable to the special procedure prescribed under Section 21 by the Supreme Court. In invoking the said doctrine of fraud the Supreme Court wanted to deal with the abuse of the provision of Section 21 and its colourable exercise by the landlords. It was found that the landlords use Section 21 as a short-cut method for obtaining possession, avoiding the detailed procedures of Section 14(1)(e) of the Act. Although the premises can be let out indefinitely, the landlords are creating short-term tenancies without showing any justification for them. The short term tenancies, it is found, are created with a view to increase the rent every time the tenant is changed. The Supreme Court, thereforee, laid down stringent requirements for an application under Section 21. The Court held that the application must specify the 'particular short period' of duration of tenancy. The reasons for short term tenancies should also be stated. If these requirements are not followed and landlords keep on creating tenancies for successive short-term period, by increasing the rent at each time, that would be a fraud on Section 21. A decree for eviction so secured will stand vitiated. The objections as regards the fraud can be taken even at the stage of the execution. It is the duty of the Rent Controller to go behind the decree and to find out whether any fraud is practiced by the landlord. If his conclusion is in the affirmative he can refuse the warrants of possession to a landlord. While tracing the genesis of Section 21, the Supreme Court has noted that the object of Section 21 was to encourage the building construction activity and to make additional accommodation available for residence even if it is for a short period.
7. In Noronah's case, the Supreme Court has held that the execution Court, while executing the order under Section 21, can and should go behind the decree to satisfy it if whether the justification for short-term tenancy of a particular period has been made out by the landlord or not. The requirements of Section 21 are also now authoritatively laid down by the Supreme Court. As stated earlier, the original application of the landlord under Section 21 and the proceedings on it had taken place prior to the same Supreme Court judgment. Before the said decision of the Supreme Court, the law as laid down by this Court was different. thereforee in the earlier tenancies under Section 21 special reasons for short term tenancies were never stated. The present case is of that kind. Since the question of the bona fides of the landlord is to be examined again at the stage of the execution the whole exercise is to be gone over again.
8. If at the stage of the original application' a special reason such as expected retirement or deputation is stated, but at the time of the execution, it is found that the landlord has not retired or the deputation period is further extended, the executing court will be able to take into consideration these subsequent developments. Suppose after retirement the landlord gets a new job where an accommodation is provided to him by the new employer or if he is permanently absorbed by the new employer (by terminating deputation) outside Delhi, the original 'special reason' may not survive. The Rent Controller can take these facts into consideration at the time of the execution. The coverse is also true. If the actual need arises at the time of the execution, which was not expressly stated at the time of the creation of the tenancy, the execution court will have to take into consideration the new development. In the present case, although a specific period was stated in the original application made in 1978, special reasons were not stated. At the time of the execution application, however, the petitioner is transferred to Delhi, his wife has taken up a job in Delhi and his sons are admitted to Delhi School. Bona fides of the landlords' claim have been established. The Rent Controller failed to take into consideration these new developments. In Vijay Kumar v. Inder Sain : AIR1982Delhi260 , the Division Bench of this Court, has elaborated the ratio of the Supreme Court decision in Noronah. It has further held that even if specific reasons for a short-term tenancy are not stated in the original application, landlord can, by leading evidence prove it at the trial.
9. Noronah's Judgment is to be applied consistently with the fact situations. This can be illustrated by the present case. Petitioner is a Government servant and had owned a plot in Delhi. The plots can be acquired in Delhi only on lease-hold from the Delhi Development Authority. One of the conditions in the lease is that the owner must construct the house with in two years. If a Govt. servant, whose services are transferable, wants to occupy his house again, he may not get it back. The only option for him is to keep the house locked and not to let it out. This would deprive the owner a lawful return of the money invested by him. The property would deteriorate if it is not used. At the same time he will have to pay ground rent and house tax. But more serious problem would arise defeating the object of the rent Act itself. The premises, although vacant, would not be available for a tenant and thereby to reduce the shortage of accommodation. A landlord, if he is very young, on transfer, may be able to take his family with him. But when he grows to middle age and family responsibilities increase requirements of a stable place of residence are actively felt, For pursuing the higher studies, the children will have to stay in big place like Delhi. The wife may pursue her studies or may take up a job, which would be possible because the children have grown up and would not require much attention. In some cases, out of economic necessity a wife may be required to take a job. thereforee, if at a stage later to the creation of tenancy, such developments take place should not the landlord have a right to come to a Court and get the premises back from the tenant. The fact that previous to the new need the premises were let out from time to time would not be of much relevance in deciding the need arising at the subsequent time. This exactly is what has happened in the present case The Supreme Court judgment has been mechanically applied by the Rent Controller in the present case.
10. In the objections filed by the tenant vague allegations of fraud are made by the tenant. They are as follows :
'That by obtaining an order under Section 21 of the Delhi Rent Control Act on 5-7-78, the petitioner has played a fraud upon this Court inasmuch as that from the information gathered by the respondent these premises have been let out from time to time by the petitioner to various tenants since the construction of the premises. The petitioner has not lived in this premises at any point of time. Previous to the occupation of the respondent from 5-7-78, the premises were let out to one Mr. Mukherjee, Director, Children Book Trust. Earlier to Mr. Mukherjee's occupation the premises were let to other tenants. The petitioner has let out the premises to subsequent tenants at enhanced rate of rent.'
11. The landlord has denied the fact that the premises let out to one Mr. Mukherjee. He has stated that one Mr. Lok Nath Bhattacharya was the tenant at a rental of Rs. 1300/- per month which also is a rent for the present tenant. He has further denied the fact that the premises were let out at enhanced rate of rent.
12. The allegations of fraud lack in all material particulars. The name of the previous tenant stated by the tenant is wrong. He has not provided any particulars regarding the alleged enhanced rates of rent from different tenants nor has laid any prima facie evidence. On the averments of the tenant quoted above it is impossible to hold that the landlord has practiced a fraud. In a summary inquiry before the execution court, definite facts and cogent evidence must be suggested.
13. The general principle of law is that a person alleging fraud must come to the Court with clean hands. The tenant must perform his duties under the Act such as punctual payment of rent, utilising the premises for the purpose for which they were let out, not to cause any damage to the premises etc. It is an admitted fact that almost from the beginning of the tenancy, the tenant did not pay rent at all and suit for recovery of about Rs. 35,000/- was required to be filed by the landlord. During the course of the argument it was found that from 1981 onwards, the tenant was again in arrears. The tenant admitted this fact. A large sum of Rs. 22,000/-was admitted to be due by way of arrears of rent. In spite of the earlier suit, the tenant was deliberately avoiding payment of rent. I had, thereforee, to direct him to make the payment of the said admitted amount of Rs. 22,000/-immediately which the tenant has now done. The notice of execution application was given to the tenant. The landlord accompanied the court bailiff for service of the notice. The tenant read the notice but refused to accept it on the pretence that the father's name was wrongly shown on the notice This was not the fact. Father's name was correctly stated. He deliberately avoided contesting the execution application. However, when the warrant of possession were issued he rushed to the court for getting the order set aside. The conduct of the tenant disentitles him to seek any indulgence from the court on (vague) charges of landlord's fraud.
14. The learned Rent Controller has further erred in holding that the provisions of the Civil Procedure Code do not apply to the execution application made in case of a decree under Section 21. Perhaps he wants to suggest that Rule 5 of the D.R.C. Act provides for a special procedure. On these findings, he has held that the tenant's application was not barred by principles of resjudicata. Rule 5 of the D.R.C. Act reads :
'An application for recovery of possession under Section 21 by the landlord shall be made within six months from the date of expiry of the period of tenancy.'
Bare reading on the said Rule would show that except for the period of limitation, the said Rule does not provide for any procedure for execution of the decree passed under Section 21. The Rent Controller has accepted a legal position that for execution of the eviction order under Section 14 Order 21 CPC would be applicable. The Rent Controller noted the decision reported in : AIR1963Guj1 , wherein it is held that where a JD does not appear under Order 21 Rule 22 CPC to show cause why the decree should not be executed against him/then Order 21 Rule 23 C.P.C. provides that the Court shall order the decree to be executed. An order under Order 21 Rule 23 being a determination of a question within Section 47 amounts to a decree within the meaning of Section 2(2) and an appeal lies. If no appeal is filed by the judgment debtor he cannot be permitted to contend at any subsequent stage of the execution proceedings that order was not rightly made and the said order would operate as a resjudicata. But the learned Rent Controller held that the ruling was not applicable in view of his view that Order 21 CPC does not apply in the present case. That view is erroneous. Since no procedure is laid down by Rule 5, Order 21 C.P.C. would apply. I am in respectful agreement with the decision of the Gujarat High Court quoted above. The landlord's application for execution was under Order 11 CPC. The tenant did not contest the said application nor filed any appeal after the order was passed. The present application of the tenant is, thereforee, barred by principles of resjudicata. It has been authoritatively held that the principle of resjudicata is not exhaustively defined in Section 11 of the C.P.C. The object of the provision is to discourage multiplicity of proceedings and harassment of parties to a litigation.
15. The last contention of the tenant is that the matter should be remanded back to the Rent Control for taking further evidence in the matter. The counsel for the landlord opposes it on the ground that there is already long delay in the matter and landlord's need is very pressing. The landlord is required to stay in the army mess where he cannot continue indefinitely. The landlord has produced his transfer order to Delhi and the receipts of fees from the schools where his children are admitted. The tenant has not made any specific allegations regarding fraud. The landlord has furnished the name of the earlier tenant and has positively asserted that he was charging the same rent from the said tenant as he charged from the present tenant. Since his transfer to Delhi in March, 1980 the landlord is managing to stay in the army mess for the last 3 years. The enquiry before the executing Court has to be a summary inquiry and the facts disclosed by both the parties were sufficient for the decision in the matter. Unfortunately, the Rent Controller has not looked into all the facts. No useful purpose would be served by remanding the matter as the proceedings are likely to be delayed indefinitely. The submission of the tenant is, thereforee, rejected.
16. For the reasons stated above, the order of Shri Kuldip Singh, 3rd Additional Rent Controller dated 29th August, 1981 is set aside. The landlord is entitled to warrants of possession. The petition succeeds with costs. Counsel fee at Rs. 500/-.