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Rajeshwar Dayal Vs. Nanak Chand and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 165 of 1981
Judge
Reported in21(1982)DLT45; 1982(3)DRJ44
ActsDelhi Rent Control Act, 1958 - Sections 14(1)
AppellantRajeshwar Dayal
RespondentNanak Chand and ors.
Advocates: R.B. Gupta,; A.P. Gupta and; G.S. Vashisht, Advs
Cases ReferredMathura Prasad v. Dossibai
Excerpt:
.....the previous case. - - admittedly respondent-tenant has been using the premises as a shop and he has failed to stop the user of the premises contrary to the terms of the lease......bagh, new delhi was taken on lease by one smt. singhari devi from the delhi improvement trust in terms of lease deed dated 12.5.1942. it was gifted by her to her daughter smt. gaindo bai by means of a gift deed dated 7-7-1945. smt. gaindo bai thereafter sold the lease hold rights to ganga dayal father of the appellant by means of a sale deed dated 9-10-1953. shri ganga dayal saxena raised structure over the said plot of land. he let out one garrage of the said property to nanak chand, respondent no. 1 with effect from 1-7-1954 on a monthly rent of rs. 50.00 in terms of the rent note dated 7-7-1954 (ex aw3/1). the respondent no. i started using the said garrage for the purpose of running a provision store. according to the lease deed the property was to be used for residential purpose.....
Judgment:

Sultan Singh, J.

(1) This second appeal under section 39 of the Delhi Rent Control Act, 1958 (hereinafter referred to as the Act) by the landlord has arisen in the following circumstances.

(2) Plot No. 4/3 situated as Western Extension Area Karol Bagh, New Delhi was taken on lease by one Smt. Singhari Devi from the Delhi Improvement Trust in terms of lease deed dated 12.5.1942. It was gifted by her to her daughter Smt. Gaindo Bai by means of a gift deed dated 7-7-1945. Smt. Gaindo Bai thereafter sold the lease hold rights to Ganga Dayal father of the appellant by means of a sale deed dated 9-10-1953. Shri Ganga Dayal Saxena raised structure over the said plot of land. He let out one garrage of the said property to Nanak Chand, respondent No. 1 with effect from 1-7-1954 on a monthly rent of Rs. 50.00 in terms of the rent note dated 7-7-1954 (Ex AW3/1). The respondent No. I started using the said garrage for the purpose of running a provision store. According to the lease deed the property was to be used for residential purpose only. As the user was contrary to the terms of the lease deed, the Delhi Development Authority successor of the Delhi Improvement Trust served various notices upon the landlord Ganga Dayal requiring him to stop the misuser. The landlord thereforee, on 9-9-1962 sent a notice to the tenant under section 14(1)(k) of the Act requiring him to stop the misuser. Finding no response, he filed an application for his eviction under section 14(1)(k) of the Act. The Additional Controller by order dated 9-12-1963 dismissed the eviction application observing that the landlord himself had let out the premises for being used as a shop. The appeal filed by the landlord, was dismissed by the Tribunal on 10-6-1964. It appears that the Delhi Development Authority, respondent No. 2 has been issuing notices to the landlord Ganga Dayal from time to time. Some of these notices are Ex. AW1/6 dated 13-5-65, Ex. AW1/7 dated 2-12-67, Ex. AWI/8 dated 5-3-68 requiring the landlord to stop the user of the plot in question contrary to terms of the lease. The landlord thereforee, on 25-7-1968 served a fresh notice upon the tenant under section 14(1)(k) of the Act requiring him to stop the misuse and to vacate the premises. The respondent No. 1 sent a reply dated 17-9-1968 (Ex. AW2/13) refusing to comply with the notice. misuse was not slopped. The landlord Ganga Dayal thereforee, on 11-3-1969 filed an application for eviction on various grounds including the ground mentioned in section 14(1)(k) of the Act. During the pendency of the eviction proceedings Ganga Dayal Saxena died and the present appellant Rajeshwar Dayal Saxena on the basis of a Will in his favor was substituted. On 31-3-1969 the Additional Controller dismissed the eviction petition on the ground that the same was barred by principles of resjudicaia. The appeal tiled by the landlord before the Rent Control Tribunal was also dismissed on 7-2-1981. Hence this second appeal.

(3) The learned counsel for the appellant submits that the previous decision of the Controller dated 9-12-1963 was erroneous in law, that the Supreme Court in Faqir Chand v. Ran Rattan : [1973]3SCR454 has held that a landlord who himself let out the premises in violation of the terms of the lease deed entered into with the President of India was not estopped from claiming eviction of his tenant under section 14(1)(k) of the Act, that there was a change in law by the judicial pronouncement of Supreme Court, that the present application for eviction was based on a cause of action different from the cause of action in the earlier case, that there is no estoppel against the appellant although he himself had let out the premises for use as a shop as held in the earlier proceedings, that his right to claim eviction under section 14(1)(k) read with section 14(11) of the Act was not determined by the Controller and the Tribunal in the previous case and that the user contrary to the terms of the lease deed is a recurring cause of action. The learned counsel for the respondent-tenant on the other hand submits that there is no change in law by the judicial pronouncement of Supreme Court as contained in Faqir Chand (supra) that it is only a declaration of the correct interpretation of the law contained in section 14(1)(k) of the Act, that the cause of action in the present litigation is not different, that the appellant having leased the premises for a purpose contrary to the terms of lease is not entitled to an order of eviction against the tenant and the eviction petition is barred by principles of res-judicata.

(4) Prior to the decision of Faqir Chand (supra) on 30.1.1973 by the Supreme Court it had been held by this Court that a landlord having himself let out the premises for a purpose contrary to the terms of lease was estopped from claiming eviction under section 14(1)(k) of the Act (see S.P. Arora v. Ajit Singh 1970 (2) Del 130 and Smt. Uma Kumar v. Jaswant Rai 1960 Plr 460.

(5) The previous eviction proceeding was based on a different cause of action i.e. on the basis of a statutory notice dated 9-9-1962 sent by the landlord under section 14(1)(k) of the Act requiring the respondent-tenant to stop the misuser. An eviction petition was filed and according to the interpretation of law as it was then prevalent the Additional Controller and the Tribunal dismissed the eviction application. The previous eviction appli- cation as already stated was dismissed by the Tribunal on 10-6-1964. There were subsequent notices by the D.D.A. requiring the landlord to stop the user of plot contrary to the terms of lease failing which the landlord was threatened that his lease would be forfeited. The landlord served a fresh notice dated 25-7-1968 under section 14(1)(k) of the Act upon the tenant and as there was no response the present eviction proceedings were filed. It seems to me that the cause of action in the two cases filed for the eviction of the respondent No. 1 are different. The cause of action for the present proceeding arose out of the statutory notice dated 25-7-IS68. User of the premises contrary to the terms of the lease is a recurring cause of action. Admittedly respondent-tenant has been using the premises as a shop and he has failed to stop the user of the premises contrary to the terms of the lease. Section 14(1)(k) of the Act reads as under : -

14.(1)Notwithstanding 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 Controller 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:- (a) to (i) x x x x (k) that the tenant has, notwithstanding 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;

(6) The cause of action under this provision consists of giving of a notice by the landlord to the tenant asking him not to use the premises in a manner contrary to the terms imposed on the landlord by the authorities concerned and to stop the misuser. If the tenant does not stop the misuser, cause of action arises to the landlord to proceed under this section seeking his eviction. Service of notice dated 25-7-1968 under section 14(1)(k) of the Act cannot be disputed as the tenant sent a reply dated 17-9-1968 (Ex. AW2/13). User of the premises as a shop, which is contrary to the terms of lease is also not disputed. Thus there would be an order of eviction against the tenant- respondent No. 1. But under sub-section (11) of section 14 of the Act no order for recovery of possession under this clause (k) could be passed if the tenant stops the misuse within a time to be fixed by the Controller or pays the compensation determined by the Controller. In the present case the Controller and the Tribunal dismissed the eviction application on the ground that the same was barred by principles of res-judicata. They had not determined whether the tenant was willing to stop the misuse or pay the compensation that may be determined by the Controller. In other words it means that the eviction petition was dismissed on the ground that the same was barred by principles of res-judicata and that he was estopped from claiming eviction as he had himself let out the premises for a non-conforming user. A similar matter arose before me in Lila Wati Datta v. Karol Bagh Union and Delhi Development Authority : 20(1981)DLT52 . In that case also the landlord had let out the premises to the tenant for a use contrary to the terms of the lease. His petition for eviction was dismisled on the ground of estoppel. After the decision, of the Supreme Court in Faqir Chand, (supra) the landlord filed a fresh petition and it was held that he was not estopped from filing the eviction application, that the subsequent eviction application was not barred by principles of res-judicata and that the cause of action in the subsequent eviction application was different. Further it was held that when the Supreme Court interprets a statute in a manner different from the interpretation of the statute by the High Court, it amounted to a change in law. I further observed :

'MANYlandlords let out the premises themselves for use contrary to terms of their lease deed and in view of the law contained in section 14(1)(k) of the Act as interpreted by this court they are also estopped from evicting their tenants under the principles of estoppel and are likely to forfeit lease of their land with building thereon. This would be a great hardship to them. The law laid down in Faqir Chand (supra) must be available to such landlords to enable them to protect their lease and building. The legislature is not supposed to amend the provision of section 14(1)(k) of the Act to protect all such landlords when the Supreme Court has interpreted the said provision holding that the landlords are not estopped from claiming eviction under section 14(1)(k) of the Act even if they themselves had let out the building for a purpose contrary to terms of lease deed executed between the landlord and the authority concerned.'

(7) In view of my previous judgment, I hold that the cause of action in the present case is different from the cause of action in the earlier case, that there was change of law on account of interpretation given by the Supreme Court, that there is no estoppel against appellant, as his right to claim eviction under section 14(1)(k) of the Act was not determined in the previous eviction case. The learned counsel for the respondent submits that under the principles of res-judicata the litigant cannot be vexed twice. There is no dispute about this proposition of law. But there are exceptions; which arc mentioned in Mathura Prasad v. Dossibai, : [1970]3SCR830 . The Supreme Court observed as follows :

'THEdoctrine of rest judicata belongs to the domain of procedure, it cannot be exalted to the status of a legislative direction between the parties so as to determine the question relating to the interpretation of enactment affecting the jurisdiction of a Court finally between them, even though no question of fact or mixed question of law and fact and relating to the right in dispute between the parties has been determined thereby. A decision of a competent Court on a matter in issue may be rest judicata in another proceeding between the same parties : the 'matter in issue' may be an issue of fact, an issue of law, or one of mixed law and fact. An issue of fact or an issue of mixed law and fact decided by a competent court is finally determined between the parties and cannot be reopened between them in another proceeding. The previous decision on a matter in issue alone is rest judicata : the reasons for the decision are not rest judicata. A matter in issue between the parties is the right claimed by one party and denied by the other, and the claim of right from its very nature depends upon proof of facts and application of the relevant law thereto. A pure question of law unrelated to facts which give rise to a right, cannot be deemed to be a matter in issue. When it is said that a previous decision is rest judicata, it is meant that the right claimed has been adjudicated upon and cannot again be placed in contest between the same parties. A previous decision of a competent Court on facts which are the founda- corporation of the right and the relevant law applicable to the determination of the transaction which is the source of the right is rest judicata. A previous decision on a matter in issue is a composite decision : the decision on law cannot be dissociated from the decision of facts on which the right is founded. A decision on an issue of law will be as rest judicata in a subsequent proceeding between the same parties, if the cause of action of the subsequent proceeding be the same as in the previous proceeding) but not when the cause of action is different, nor when the law has since the earlier decision been altered by a competent authority nor when the decision relates to the jurisdiction of the Court to try the earlier proceeding, nor when the earlier decision declares valid a transaction which is prohibited by law.'

(8) The Supreme Court after discussing various authorities on the question of principles of rest judicata further observed :

'Aquestion of jurisdiction of the Court, or of procedure, or a pure question of law unrelated to the right of the parties to a previous suit, is not rest judicata in the subsequent suit.'

(9) The judgment in Lila Wati Datta (supra) is applicable to the facts of the present case.

(10) The ground of eviction under section 14(1)(k) of the Act stands proved as discussed already. But the Controller or the Tribunal has not taken proceedings under section 14(11) of the Act which is a mandatory provision. The appeal is thereforee, accepted. The judgment and order of the Tribunal confirming the order of the Additional Controller dismissing the Eviction application under section 14(1)(k) of the Act is set aside. The matter however will have to go back to the Additional Centroller for deciding the question under sub-section 11 of the section 14 of the Act whether he should exercise the one or the other of the two alternatives mentioned therein. The Delhi Development Authority is a party to the present proceedings. The Controller shall after affolding an opportunity to the parties determine the questions arising under section 14(11) of the Act. Parties are directed to appear before the Additional Controller on 7th December 1981. There will be no order as to costs.


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