However, as per the learned counsel for the respondent I cannot look into the judgments refereed to by me above. I am told that since the Supreme Court remanded the case with the direction to decide the objections "un the light of Noronah's judgment and on merit", I have no option but to confine myself within the four-corners of that order and therefore must not see beyond what had been laid down in Noronah case . A already noticed by me above, in Noronah case a challenge to the validity of limited tenancy was permitted even after the expiry of the limited lease. In other words, the learned counsel for the respondent wants me not to dismiss the objection petition on the basis of the subsequent pronouncements of the the Apex Court. In support he drew my attention to a judgment of the Madras High Court in Konappa Mudaliar v. Kusalaru alias Munuswami Pillai, , wherein it was held that it is not open to the lower Court, when an appellate Court remanded the case to il, to do anything but to carry out the terms of the remand even if it considers that the order of remand was not in accordance with the law and further that it cannot apply what it might consider correct position of the law.{Para 9}
10. Does the order of remand shut all the doors and windows to new light and fresh air ? Does it, to borrow the words of Cardozo compel me to "refuse to see the acres already sown and fruitful"? There can be a change in the normative system -- such as legislation or new case law or a change in the approach to the rules of interpretation. Am I supposed to ignore all that? Would I not thereby be uprooting the word written after Noronha's case and thereby, in effect calling the day night and the night day? At the stage when the order of remand was passed there existed, with respect to the facts that were before the court, only one lawful solution (We may call it even appropriate solution). But then, a Judge convinced of the correctness of a certain solution does not deny the existence of additional lawful solution and therefore acts in a manner which would not shun out stages of thought and Us development.
11. The perusal of the remand order would go to show that it is not formulated absolutely. When it uses the expression "in the light of it does not say that the matter must necessarily be decided in the terms of Noronha judgment. What is meant by that expression is that the said judgment should be kept in view, or in other words, it must be within the contemplation of the courts below while deciding the matter. It says nothing more. And, if that be so, does it not leave vast field open for different stages of thought and its development ?
12. The expression "and on merits" needs also to be noticed, for, it too lends support, and I hope I am right in thinking so, to my view. Of course the term "merits" is not very clearly defined and I am acutely conscious of the same. But then docs the word "merits" bears the sense of substantial legal rights of the parties to an action ? When we say "oh merits" do we not mean a decision on a matter of substance in law as distinguished from matters of form? And again, if that be so would the court be not obliged and required to take note of the latest binding pronouncements of the apex Court while dealing with the matter on merits ? To my mind, and I say so with all respect, the interpretation proposed by the learned Counsel for the respondent would lead in practice to an illogical result. The entire approach to the subject has to be based on ethical values such as fairness and justice. And, it is this fairness and justice which a Judge must seek and effectuate instead of being led off the trail by interpreting an order in a manner that would not breed justice but injustice. In other words, the order must be interpreted (if at all it needs to be interpreted) so as to manifest an intent that is consistent with convenience, logic and justice.
13. Since in my view of the order of remand, 1 can go into the judgments passed subsequent to the pronouncement in Nornha's case.
ORDER OF REMAND - Interpretation of-Supreme Court remanding the case for decision in the light of a particular decision-Subordinate Court can look into the subsequent decisions also to ascertain the correct position of law.
Print Page
Delhi High Court
Hardit Singh Chadha vs Jagtar Singh Grover on 1 October, 1993
Equivalent citations: 1993 IVAD Delhi 501, AIR 1994 Delhi 189, 52 (1993) DLT 120, 1994 (28) DRJ 17, ILR 1994 Delhi 528, 1993 RLR 639
Bench: J Singh
PRACTICE & PROCEDURE - Delay in dispensing justice-Thc Court appreciated the poem-an extract there from:-
I'm now old and snuffed out, my son- I'm lost somewhere in these catacombs. So enter ye from the eastern gate- and I already see your son, and his and his - all queued up brandishing the same petition for a speedy redress."
JUDGMENT
1. Shakespeare lamented that being involved in a law suit is like being ground to bits in a slow mill; it is being roasted at a slow fire; it is being stung to death by single bees; it is being drowned by drops; it is going mad by grains. I have every reason to believe that even now in these dying days of the 20th century the feeling can be no different.
2. The story of this long drawn legal battle revolves around F-33, Rajouri Garden, New Delhi and dates back to the year 1976. It was on that date that the petitioner had let out the premises to the respondent for a period of 359 days after obtaining permission of the Controller under S. 21 of the Delhi Rent Control Act (hereinafter called 'the Act'). Actually, the respondent was no stranger to the premises. He had been initially let out the premises for a period of three years and thereafter twice for 359 days each. Those lettings too were under S. 21 of the Act. The appellant claims that the respondent vacated the premises on August 31, 1976 and look up residence at Fateh Nagar and on November 18, 1976 he was inducted again into the premises after obtaining permission on the same day under S. 21 of the Act. The respondent, however, alleges that actually he had never vacated the premises and that while he was still in occupation of the same a fresh application under S. 21 was moved on November 18, 1976 and permission obtained. I will be coming back to this part of the story again. Let me first complete the narrative. It so happened that after the expiry of 359 days . the respondent did not vacate the premises. Faced with this situation, the appellant-landlord filed an execution application on December 22, 1977. On February 17, 1978 the respondent filed his objections but the Controller dismissed the same on December 16, 1978. The respondent then filed an appeal before the Tribunal who dismissed the same on January 5, 1979, When approached, the High Court too refused to interfere. This made the respondent go to the Supreme Court. The Supreme Court remanded the matter back. Since the order of the Supreme Court was at the center-stage of the tenuous arguments addressed before me. I may for a moment, interrupt the onwards journey and reproduce the same. It runs as under :
"The appeal above-mentioned being called on for hearing before this Court on the 30th day of October, 1979, Upon hearing counsel for the parties herein this Court while observing that the appeal above-mentioned is concluded by Judgment dated the 16th August, 1979 of this Court in Civil Appeal No. 290 of 1979, entitled S, B. Naronha v. K. Khanna DOTH in allowing the appeal above-mentioned order, the order dated the 16th December, 1978 of the 5th Additional Rent Controller, Delhi, in Execution Case No. M1/78, upheld in appeal by the Judgment and order dated the 5th January, 1979 of the Rent Control Tribunal, Delhi in R.C.A. 1228 of 1978 and confirmed by the Judgment and order dated the 15th January, 1979 of the Delhi High Court at New Delhi in SAO No. 4 of 1979 be and is hereby set aside, and the case be and is hereby remanded to the Court of the aforesaid Additional Rent Controller, Delhi, with the direction that the said Rent Controller, Delhi Do restore to his file the said case No. M-1/78 and Do decide the same in the light of the above said Judgment of this Court in Civil Appeal No. 290 of 1979 and on merits; (2) That both the parties herein shall appear before the said Additional Rent Controller, Delhi on the 3rd December, 1979".
To continue again with the narrative, consequent upon the remand the matter again went back to the Controller who after recording the evidence of the parties on the objections raised, once against dismissed them. Aggrieved by that order the tenant knocked at the door of the Tribunal who responded and allowed the appeal. It was then the turn of the landlord to feel aggrieved. Hence this appeal by him.
3. What are the objections which has witnessed all this legal fire work? The objection of the respondent-tenant is that permission under Section 21 of the Act was obtained by playing fraud upon the court. And, what was that fraud? First, the Controller was not informed that the premises were not lying vacant. Rather, it was falsely alleged that the premises were lying vacant and were available for being let out, although, in truth and to the knowledge of the landlord the same were not lying vacant and were with the respondent-tenant who was in actual physical possession of the same as a tenant. Secondly, the appellant falsely alleged that after the expiry of 359 days the premises were to be required for his son. The respondent alleges that the appellant knew all along that the premises were not required for his son and yet in order to make out a case that the premises required only for a limited period a false plea with regard to his son's requirement was coined and put up before the Controller.
4. I think, it is time to first say a few words about the application under Section 21 of the Act and then refer to the proceedings before the Controller from whom the permission to let out the premises was obtained.
5. The application is dated November 15, 1976 though it was filed in court on November 17, and was actually taken up for disposal on November 8. The title of the application shows the respondent to be resident of house No. 3874-3879, G. B. Road, Delhi. The application was signed and verified by the appellant-landlord and below the verification the following writing appears which bore the signatures of the respondent.
"I agree to the above letting. Keys would be received before the Rent Controller, Delhi.
Sd/-
Respondent.
Paragraph 2 of the application is not without significance and needs to be reproduced. It runs as follows.
"That the complete ground floor single storey in premises No. F-33, Rajouri Garden, New Delhi-27, consisting of Drawing-Dining, three bed rooms, one store, one kitchen one latrine and one bath as marked red in the plan attached is lying vacant as the petitioner does not require the same for himself or his family's occupation for present. The petitioner, however, will require the said premises after 359 days for the occupation of his son Dr. K. S. Chadha aged 28 years."
6. It may also be mentioned that Along with the application under Section 21, a proposed lease deed was also attached. It too was duly signed by both the parties and therein also the respondent was shown to be resident of the premises referred to above situate in G.B. Road and it was recorded that the premises sought to be let out, and which, as already* been pointed out above, were situate in Rajouri Garden, were lying vacant.
7. Coming to the proceedings before the Controller on November 18, 1976 when the application was allowed under Section 21 and permission to let out was granted, it appears that the Controller first recorded the statement of the petitioner-landlord and thereafter the statement of the respondent. The statement of the parties are as under.
"Statement of S. Hardit Singh petitioner on S.A.
I am the owner of premises No. F-33, Rajouri Garden, New Delhi I want to let out the same premises to the respondent for residential purpose for a period of 359 days w.e.f. today of the rent of Rs. 425/- p.m. besides water and electricity charges. The site plan of the premises which has been shown in red has been let out to the respondent. Site plan is Ex. A/1 and the agreement is Ex. A/2".
Sd/-
R.O. & A.C. Addt. Rent Controller.
Statement of S. Jagtar Singh Grover, respondent on S.A.
I have heard the above statement of the petitioner and accepted the same to be correct. 1 want to take on rent the above stated premises on the agreed rent. I shall vacate the premises in question after the expiry of the said period. I shall take the premises after the permission of the court today.
R.O. & A.C."
The order passed thereupon by the Controller may also be profitably reproduced. It was in following terms :
"Having regard to the averments made in the petition and the statements of the parties recorded above, permission under Section 21 of D.R.C. Act, 1958 is granted to the petitioner for letting out the premises as shows in red in the plan Ex. A/1 to the respondent for residential purpose for a period of 359 days with effect from today, the 18th day of November, 1976, file be consigned in the Record Room.
18-11-76 Sd/-
Addl. Rent Controller, Delhi."
8. What is to be done about the objections ? undoubtedly in S. B. Noronah v. Prem Kumari, a challenge to the validity of the limited tenancy was permitted by the Supreme Court even after the expiry of the period'of limited lease. It is also true that the pronouncement of the Supreme Court in Subhash Kumar Lata v. R. C. Chhiba, supports the
argument that nullity of the order under Section 21 obtained by fraud can be urged in defense against execution. However, the subsequent judgments of the Supreme Court have substantially denuded the view taken in Noronah case and the view which now holds good is that in case the tenant seeks to assail the permission granted under Section 21 on the ground of fraud he must approach the Controller during the currency of limited tenancy for the adjudication of his pleas as soon as, he discovers facts and circumstances which, according to him, vitiate the initial grant of permission. In this respect reference may be made to J. R. Vohra v. M/s. India Export House Pvt. Ltd., AIR 1986 SC 475; Joginder Kumar Butan v. R. P. Oberoi, : ; Shiv Chander Kapoor v. Amar Bose, ; Smt. Yamuna Maloo v. Anand Swarup, AIR 1990 SC I75 and Pankaj Bhargava v. Mohinder Nath, . This being the legal position, the respondent meets his Waterloo for, although he was all along aware of the alleged fraud and misrepresentations, he maintained sphinx-like silence over the same during the currency of limited tenancy and came up with the plea of fraud only after the, landlord had sought to execute the order which was much after the expiry of that period.
9. However, as per the learned counsel for the respondent I cannot look into the judgments refereed to by me above. I am told that since the Supreme Court remanded the case with the direction to decide the objections "un the light of Noronah's judgment and on merit", I have no option but to confine myself within the four-corners of that order and therefore must not see beyond what had been laid down in Noronah case . A already noticed by me above, in Noronah case a challenge to the validity of limited tenancy was permitted even after the expiry of the limited lease. In other words, the learned counsel for the respondent wants me not to dismiss the objection petition on the basis of the subsequent pronouncements of the the Apex Court. In support he drew my attention to a judgment of the Madras High Court in Konappa Mudaliar v. Kusalaru alias Munuswami Pillai, , wherein it was held that it is not open to the lower Court, when an appellate Court remanded the case to il, to do anything but to carry out the terms of the remand even if it considers that the order of remand was not in accordance with the law and further that it cannot apply what it might consider correct position of the law.
10. Does the order of remand shut all the doors and windows to new light and fresh air ? Does it, to borrow the words of Cardozo compel me to "refuse to see the acres already sown and fruitful"? There can be a change in the normative system -- such as legislation or new case law or a change in the approach to the rules of interpretation. Am I supposed to ignore all that? Would I not thereby be uprooting the word written after Noronha's case and thereby, in effect calling the day night and the night day? At the stage when the order of remand was passed there existed, with respect to the facts that were before the court, only one lawful solution (We may call it even appropriate solution). But then, a Judge convinced of the correctness of a certain solution does not deny the existence of additional lawful solution and therefore acts in a manner which would not shun out stages of thought and Us development.
11. The perusal of the remand order would go to show that it is not formulated absolutely. When it uses the expression "in the light of it does not say that the matter must necessarily be decided in the terms of Noronha judgment. What is meant by that expression is that the said judgment should be kept in view, or in other words, it must be within the contemplation of the courts below while deciding the matter. It says nothing more. And, if that be so, does it not leave vast field open for different stages of thought and its development ?
12. The expression "and on merits" needs also to be noticed, for, it too lends support, and I hope I am right in thinking so, to my view. Of course the term "merits" is not very clearly defined and I am acutely conscious of the same. But then docs the word "merits" bears the sense of substantial legal rights of the parties to an action ? When we say "oh merits" do we not mean a decision on a matter of substance in law as distinguished from matters of form? And again, if that be so would the court be not obliged and required to take note of the latest binding pronouncements of the apex Court while dealing with the matter on merits ? To my mind, and I say so with all respect, the interpretation proposed by the learned Counsel for the respondent would lead in practice to an illogical result. The entire approach to the subject has to be based on ethical values such as fairness and justice. And, it is this fairness and justice which a Judge must seek and effectuate instead of being led off the trail by interpreting an order in a manner that would not breed justice but injustice. In other words, the order must be interpreted (if at all it needs to be interpreted) so as to manifest an intent that is consistent with convenience, logic and justice.
13. Since in my view of the order of remand, 1 can go into the judgments passed subsequent to the pronouncement in Nornha's case , the position which emerges out is that as all the facts allegedly constituting misrepresentation or fraud were all along known to the respondent-tenant and as despite that he did not challenge the order during the subsistence of limited period of tenancy on the basis of those alleged misrepresentations or fraud, the objections filed by him only after the expiry of the limited period of lease deserve to be dismissed on that short ground alone. And in this connection I have already referred in the preceding paragraphs to the judgments on the subject which have emanated from the apex Court.
14. It was contended by the learned Counsel for the respondent that as the respondent had alleged that he was already in possession of the premises as a tenant at the time when the permission was sought and granted and since at that time the premises were not lying vacant, therefore, the objection so taken related to a jurisdictional fact and that consequently it could be taken even during the execution proceedings. In support my attention was drawn to Smt. Shrisht Dhawan v. M/s. Shaw Brothers, and more particularly to the following observations made therein by Hon'ble Mr. Justice R. M. Sahai (Para 19, at p. 1563 of AIR) :
"Although the section visualises four conditions, namely, that the landlord does not require the whole or part of premises for a particular period, the landlord must obtain the permission of the Controller in the prescribed manner, letting of the whole or part of the premises must be for residence and such letting must be for such period as may be agreed between the landlord and the tenant in writing. But the jurisdictional fact can be said to be two, availability of vacant premises which are not required by the landlord for the particular period and its letting out for residential purpose. For instance a permission obtained under Section 21 may be vitiated if the premises were not vacant on the date of application....."
And, "The permission granted under Section 21 once permitted to attain finality becomes unassailable on error in exercise of jurisdiction. It could be challenged later or in execution only if it could be brought in the category of a void or ultra vires permission. Such invalidity can arise if jurisdiction is exercised by misrepresentation of facts either about existence of vacancy or nature of premises."
15. Although in Shrisht Dhawan's case availability of vacant premises has been noticed as a jurisdictional fact, the jurisdictional fact under Sec. 21 as indicated in Noronah's case would be first that the landlord did not require the demised premises "for a particular period" only and secondly, that the letting must be made for residential purposes. In J. R. Vohra v. India Export House also, the Supreme Court speaks of only two conditions namely, (a) that the landlord does not require the premises for a particular period only, and (b) that the letting itself is for residential purposes and no other. If we peruse the judgment in I. M. Lal v. Ramesh Khanna, , it too would reveal that it speaks of four conditions which must be fulfillled and none of them is to the effect that the premises must be lying vacant at the time of seeking the permission or obtaining it. As per it, the four conditions which must be fulfillled in order to attract Section 21 are : Firstly, that the landlord must not require the promsies for a particular period; secondly, the landlord must obtain the permission of the Controller in the prescribed manner; thirdly, letting of the premises must be for residence; and fourthly, such letting out must be for such period as may be agreed to in writing. As per the said judgment, "these and these alone are the conditions which are required to be fulfillled". In Shiv Chander Kapoor's case , also the court has mentioned only two jurisdictional facts, first that "that the landlord does not require the whole or any part of the premises for a particular period" and secondly that it is to be let for "residence". As per the Court these are the words of the provision "which specify the jurisdictional fact which alone permit creation of tenancy for a limited period", and that "the remaining provision provides the machinery for doing so by an agreement in writing between the landlord and the tenant on the basis of which permission of the Controller is obtained."
16. What I have tried to show in the preceding paragraph is that in none of the judgments referred to above has it been held that availability of vacant premises is a jurisdictional fact. It is significant to note that in Pankaj Bhargava's case , which was decided by a three Judges Bench, the objection was that the premises were not available for letting and that in fact the objector was already in possession of the premises even prior to the commencement of the limited tenancy and that for that reason, the subsequent permission for limited tenancy was a mere pretence and the result of fraud on the statute, and, therefore, a nullity. In reply it was urged by the landlord that even if there was an earlier tenancy and permission under Section 21 was sought and obtained suppressing that fact or the permission was procured by fraud the remedy of the tenant lay in bringing up the challenge to the limited tenancy as soon as the facts constituting fraud were discovered. Dealing with the respective contentions of the parties the Court observed (Para 13) :
"It is true that in Noronah's case , a challenge to the validity of the limited tenancy was permitted even after the period of limited lease. But later cases have substantially denuded this position. In Vohra's case , this Court laid down that a tenant who assails the permission under Section 21 on the ground that it was procured by fraud -- a ground not dissimilar to the one urged in the present case -- must approach the Rent Controller during the currency of the limited tenancy for an adjudication of his pleas as soon as he discovers facts and circumstances which according to him, vitiate the permission. It was held that whether it was a "mindless order" or one procured by fraud practiced by the landlord or was the result of a collusion between landlord and tenant there was no justification for the tenant to wait till the landlord made his application for recovery of possession but there was every reason why the tenant should have made an immediate approach to the Rent Controller to have his pleas adjudicated as soon as facts and circumstances giving rise to such pleas came to his knowledge."
The Court further observed (Para 14) :
"The authority of decided cases is to the effect that the permission granted must be presumed to be valid till set aside. Doctrine of collateral challenge will not apply to a decision which is valid ex hypothesis and which has some presumptive existence, validity and effect in law. Such a decision can be invalidated by the right person in right proceedings brought at the right time. It is only a nullity stemming from lack of inherent jurisdiction or a proceeding that wears the brand of invalidity on its forehead that might afford a defense even against enforcement. Shri Sachar is right in his contention that such a collateral challenge may not be available where there is no lack of inherent jurisdiction but what is disputed is only the existence or non-existence of facts which though collateral to the merits do require investigation into and adjudication upon their existence or non-existence on the basis of evidence. If the parties before the Rent Controller have admitted that the fact or the event which gives the Controller jurisdiction is in existence and there was no reason for the Controller to doubt that bona fides of that admission as to a fact or event, the Controller is under no obligation to make further enquiries on his own as to that factual state. The test of jurisdiction over the subject matter is whether the Court or Tribunal can decide the case at all and not whether the Court has authority to issue a particular kind of order in the course of deciding the case."
And that (Para 16) :
"Indeed in Dhanwanti v. D. D. Gupta, , it was held that permission under Section 21 for letting out the premises to the same tenant for limited periods more than once successively would not by itself and without more vitiate the subsequent grants. In one sense, the successive grants of permission would share, the characteristics of post-facto grant."
Reference may also be made to Yamuna Maloo v. Anand Swarup, which again was a judgment by a Bench of three Hon'ble Judges. The perusal of that judgment would go to show that one of the objections raised was that the premises were actually available for letting for unlimited period. Undoubtedly in view of the judgments referred to by me above the objection so raised related to a jurisdictional fact and yet it was held that as all the facts were within the knowledge of the tenant-objector his silence during the period of limited tenancy was fatal. I am particularly tempted to reproduce the following from the said judgment (at pp. 1730-31 of AIR) :
"Both in Vohra's case and in Shiv Chander Kapoor's case though not arising for determination in either, it has been stated while laying down the rule that proceeding to challenge limited tenancy has to be taken during the currency of the tenancy, an objection filed by the tenant could looked into is indeed an obiter. We would like to make it clear that the rule having been stated to the contrary in Vohra's case, there was indeed no warrant to indicate the contra situations. Perhaps to meet the eventuality which might arise in a particular case, neither of the two Benches of this Court wanted to close the avenue of enquiry totally, and that is why in both the cases decided by coordinate Benches the exception has also been indicated. It must be understood on the authority of the said two decision and our judgment now that if the tenant has objection to raise the validity of the limited tenancy it has to be done prior to the lapse of the lease and not as a defense to the landlord's application for being put into possession. We would like to reiterate that even if such an exercise is available that must be taken to be very limited and made applicable to exceptional situations. Unless the tenant is able to satisfy the Controller that he had no opportunity at all to know the facts earlier and had come to be aware of them only then, should such an objection be entertained."
17. For what has been recorded by me above I find no force in the contention of the learned Counsel for me respondent that in view of the observations referred to above from the judgment in Shrisht Dhawan's case , it was open to the tenant to raise objection even during execution proceedings.
18. Coming to the material placed on the record it must be remembered that it is the tenant who has alleged fraud. As the Supreme Court has observed in Shrisht Dhawan's case fraud is an allegation which can easily be made but it has to be proved by evidence. And, since it is the respondent who has alleged fraud it was for him to lead sufficient material on the record to substantiate his allegations. Has he been able to do so ? This is the next question which arises for consideration and craves for an answer.
19. Before I proceed to examine and notice the evidence I may mention that the learned Additional Rent Controller came to the conclusion that the fraud had not been proved but in appeal the learned Tribunal felt otherwise. The perusal of the order of the learned Tribunal would go to show that he ignored the fact that it was for the tenant-objector to lead sufficient evidence either direct or circumstantial to prove the charge of fraud. The impugned order of the learned Tribunal rather goes to show that he approached the evidence as if it was for the landlord to prove that the premises were not lying vacant and that the premises were actually required after the expiry of 359 days for his son.
20. Keeping in view what has been noticed by me above, let me proceed to appraise the evidence. Undoubtedly the respondent-tenant has entered into the witness box as OW-1 and has deposed that he has been continuously in physical possession of the premises since 1972 when the premises were first let out to him for a period of three years. It is also true that he has examined two witnesses both of whom have stated that the respondent had never vacated the premises. Who are those witnesses? OW-2 Ajit Singh stated that the respondent before shifting to the premises used to live at a place quite close to his office. His interest in the respondent is writ large. He was never summoned as a witness. He lives at a great distance from the premises in dispute and admits that he used to visit the respondent only off and on and sometimes even after a gap of seven months. A person who is otherwise interested but visits the respondent only off and on and sometimes even after a gap of seven months cannot be relied upon when he says that the respondent never shifted when the period in question lasted only 2 months and 18 days and when there is nothing worth reliance to show that he had visited the respondent during those 2 months and 18 days. Significantly even the respondent nowhere says that this witness had been visiting him during the relevant period and on other occasions too.
21. Coming to the second witness he is also an interested witness. He is running his shop at G. B. Road where the respondent-tenant also has a shop. Both are members of a representative body in which the respondent-tenant is an active office-bearer. He too lives at a great distance from the premises in dispute. Though he does claim that he had been visiting the respondent, significantly, the respondent has said nothing to corroborate this assertion. Can such an uncorroborated oral evidence be considered as sufficient to discharge the onus more so when the allegation is of fraud ?
22. Coming to the statement of the respondent, a few things require to be noticed first. We must remember that presumption is in favor of sanction. What is also required to be emphasised is that there is no evidence in this case that the tenant did not understand what the landlord was stating in the application under Section 21 or during the proceedings or that he did not accept what had been stated by him. It must also be taken note of that it is not a case where the tenant was wholly unequal to the landlord. There is also no material on the record to show that the Controller did not apply his mind while granting permission. Besides this a few more things must also be kept in view. The first is that in the application under Section 21 and so also in the proposed lease deed the address of the respondent-tenant was not of the premises proposed to be let out but of some house in G. B. Road. The second is that the respondent-tenant was a signatory to the application. Thirdly in the endorsement made on the application the respondent-tenant had stated that he would take delivery of the keys of the premises in the presence of the Controller. We must not forget that respondent-tenant is not an illiterate person. He is also not new to the court procedure. He had been a party to permissions obtained earlier also under Sec. 21. He was thus acquainted with the judicial norms. And, as already noticed above, he was under no pressure of any sort. He could thus stand up and disown what had been written in the application and/or even in the proposed lease deed. He did riot. Rather before the Additional Rent Controller he admitted the facts stated in the application.
23. True, the respondent has stated that he had never vacated the premises. Yet he never raised any objection. He could easily have placed on the record his Ration Card and such other documents to prove his continued occupation of the premises. And yet, he made no effort in that direction. Can he be relied upon in the absence of any such documentary evidence? more so, when admissions are there which go to show that he had not been living in the premises at the time the permission was sought and obtained.
24. Besides what has been said by me above, I feel the rent receipts placed on the record go a long way in clinching the issue. One of the rent receipts placed on the record goes to show that it is for the period from 18th November, 1976 to 30th of November, 1976. Earlier to that is a receipt which is up to the period 31st August, 1976. What happened to the period from 1st September to 17th November, 1976? If the respondent was continuously in possession and had paid rent for the whole period, the rent receipts ought to have ben from 1st September to 30th September and then from 1 st October to 30th October and thereafter from 1 st November to 30th November. However, significantly the rent receipts from 1st September to 17th November, 1976 are missing. The very fact that after the receipt which is for the period ending 31st August, 19,76 the very next receipt is for the period from 18th November, 1976 to 30th November, 1976 (Ex. R-1), goes to show that the respondent was not a tenant in the premises from 1st September, 1976 to 17th November, 1976. I may hasten to mention that it was contended by the learned Counsel for the respondent that rent for, the period from 1st September, 1976 to 30th November, 1976 had been paid but in order to perpetrate the fraud the receipt was issued only for the period from 18th November, 1976 to 30th November, 1976. However I am not inclined to place reliance on this contention. The respondent has clearly asserted that rent receipts were regularly issued but he was not in possession of the receipts for the period 1st September, 1976 to 17th November, 1976. If he had been issued rent receipts for the period 1st September, 1976 to 17th November, 1976 why have those receipts not been produced? In any case, if rent receipts were being issued where was the point in issuing a receipt for the period ending 17th November, 1976 and yet another for the period starting from 18th November, 1976 to 30th November, 1976 and thus bifurcating the month of November into two parts ? I do feel that the very fact that no rent receipt for the period from 1st September, 1976 has been produced and as the only rent receipt after 30th August is for the period from 18th November, 1976 to 30th November, 1976 it would go to show that the respondent was not in actual possession of the premises from 1st September, 1976 to 17th November, 1976.
25. Even otherwise, the perusal of the statement of the respondent would go to show that he is not worthy of reliance. Significantly he evaded every question the answer to which could be embarrassing to him. In this connection I will particularly draw attention to only two questions and their answers. They are as follows :
"Q. In your application under Section 21 you had written that you would get the keys of the premises in the presence of the Rent Controller?
Ans. I have been living in the premises along with my family since 1972.
Q. From 1st September, 1976 to 17th November, 1976 you did not reside in the premises and that is why you have no rent receipt for the said period ?
Ans. It is incorrect.
As would be borne out from above, in the first question he was directly asked with regard to delivery of the keys in the presence of the Rent Controller, The respondent skirted the issue and did not even reply to it. He did not even assert that what had been written in the application was false or was a misrepresentation or was on account of any pressure. Similarly although the second question was with regard to the rent receipt for the period from 1st September, 1976 to 17th November, 1976 the respondent did not say that he had the rent receipt for the said period. He also did not give any reason for not producing it if he was in possession of the same or the reason for having not obtained the rent receipt. The answer, "It is incorrect" leads neither here nor there. The perusal of the statement of the respondent would further go to show that here is a person who can commit somersault after somersault and can be extremely evasive and non-committal. In support I rely particularly upon the following two questions and answers :
"Q. Had your statement been recorded in 1976 before Sh. K. S. Gupta, Addl. Rent Controller?
Ans. I do not recollect. I do not remember whether that statement was by me or not but at point A my signatures do appear. I do not remember whether on 18th November, 1976 the landlord had made any statement before Sh. K. S. Gupta, Addl. Rent Controller.
Q. Is Ex. R-4 your statement?
Ans. I do not remember whether I had made statement Ex. R-4 or not.
Can such a person be relied upon?
x The petitioner-landlord has categorically stated that the premises were lying vacant from 1st September, 1976 to 17th November, 1976. His statement finds complete support and corroboration from the admissions made by the respondent himself in the application under Section 21 and in the statement made before the Controller. It further finds support from the rent receipts referred to above and from the long silence of the respondent. It also finds support from the statement of his son. Unfortunately, the learned Tribunal has found the statement of the son of the petitioner unworthy of reliance simply because he happens to be his son. However, the same yardstick has not been applied to OWs-2 and 3 when it was clearly borne out from their evidence that they too were interested witnesses being very close to the respondent. It is true that the petitioner-landlord has led evidence to show that the respondent had actually shifted his residence to Fateh Nagar and has failed miserably to prove the same. However, his failure on that account cannot lead to the presumption or to a finding that the respondent had never shifted from the premises. Of course it can be taken as a circumstance against the petitioner. But then keeping in view what has been noticed by me above I am inclined to hold that the respondent has failed to discharge the onus and it cannot be said that he was in possession of the premises at the time when the permission was sought or granted. And before concluding on this aspect of the matter 1 may also mention that at the time when the permission was sought and granted the respondent was represented by a counsel and had admittedly read the application under Section 21 before putting his signatures on the same.
27. The next challenge is on the ground that the premises were never required for the son of the petitioner and that the same were actually available for unlimited period. In his statement the respondent claims that neither the petitioner needed the premises at the time of permission nor did he require it after the expiry of limited period and that the son of the petitioner lives in Iran and that actually the petitioner wants to let out the premises at a higher rent. I feel that here too the respondent-Objector has failed to place material on the record which may go to establish his objection. Barring the solitary bald statement of the respondent that the premises were not required by the petitioner either at the time of permission or after the expiry of the limited period, there is nothing on the record to substantiate his allegation. The petitioner has himself entered into the witness box and has stated that at the time when the permission was sought his son was undergoing training as Registrar and was to complete the same on the expiry of the limited period of tenancy. It is also in his statement that at the time of the expiry of the limited period of tenancy his son was in India where he wanted to settle and start his medical profession and that he had remained in India till 1978 and that he went to Iran only after having fell frustrated on account of non-availability of the premises in dispute. It is also in his statement that even thereafter his son along with his wife came to India on being informed about the order of delivery of possession but had to go back again on account of the fact that the possession could not be obtained. To the same effect is the statement of the son of the petitioner. The learned Tribunal rejected the evidence on the ground that no record was summoned from the hospital to show as to when the Registrar ship was completed or with regard to the other assertions made by the petitioner and his son. I feel that it was for the respondent to lead evidence to prove that the premises were actually not required for a limited period and were in fact available for an unlimited period. The evidence led by the petitioner rather goes to show that at the time when the premises were let out he bona fide believed that his son would start his medical practice in India and that the premises would be made available to him. There is nothing on the record to show that this "expectation" (the expression borrowed from Dhanwanti's case was in fact only a ruse to let out the premises.
28. I will be failing in my duty by not mentioning that during arguments the learned Counsel for the respondent had drawn my attention to a judgment of the Supreme Court in O.T.M.O.M. Mayyappa Chettiar v. O.T.M.S.M. Kasi Viswanathan Chettiar, . It was contended on the basis of the said judgment that it was not open to me to reassess the evidence and that the finding of the Tribunal could not be subjected to any scrutiny. However, I feel that as the learned Tribunal approached the evidence and assessed it in a way as if the entire onus was on the petitioner and as on that account he completely misdirected himself, therefore, it was open to me to look into the evidence and reappraise the same. I feel that even in the light of the order of remand which requires a decision on the merits as well, it is open to me to look into the evidence.
29. For what has been recorded by me above I am of the view that the respondent has failed to prove that the permission was sought and obtained on the ground of fraud. Even otherwise, his objections deserve to be dismissed as all the facts were known to him and yet he kept quiet over the matter and filed objections only after the expiry of the period of limited tenancy. Consequently the appeal is accepted and the impugned order is set aside. However, the parties are left to bear their own costs.
30. Sixteen long years have already gone by. This, then, is the end. Or is it? One is painfully reminded of the following from the poem entitled "Tis Hazari Courts, Delhi" penned by the Sahitya Academy Award winner poet Professor Shiv K. Kumar :
".....
From the murky corridors of this labyrinth, there is no escape. Since time began I have watched the victims enter from the eastern gate -- and then only the smoke exists from the other end.
On the rickety wooden benches, the waiting pilgrims have left their bones for their progeny to collect.
The air echoes with the wailings of those who first knocked at these doors, centuries ago.
.....
It's the long wait that kills the lover, the cancer-patient and the petitioner.
I'm now old and snuffed out, my son --I'm lost somewhere in these catacombs. So enter ye from the eastern gate --and I already see your son, and his and his -- all queued up brandishing the same petition for a speedy redress."
31. Appeal allowed.
No comments:
Post a Comment