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Satjitsingh v/s Skipper Tower Private Limited

    Civil Miscellaneous (Main) Appeal No. 169 of 1998
    Decided On, 11 May 1999
    At, High Court of Delhi
    By, THE HONOURABLE MR. JUSTICE VIJENDER JAIN
    For the Appearing Parties: Arun Mohan, G.L. Raval, Vaishali Mehra, Advocates.


Judgment Text
VIJENDER JAIN, J.


(1) INITIALLY in 1979 the tenancy was created under Section 21 of the Delhi Rent Control Act (hereinafter referred to as 'drc Act') by the mother of the petitioner in favour of respondent No. 2-Skipper Sales Private Limited for a period of two years. In 1995 a petition for eviction was filed by the petitioner under Section 14 (l) (e) of the DRC Act against respondent No. 2, Skipper Sales Private Limited, and an eviction order was passed on 10. 11. 1995. When that order was to be executed, Sardar Tejwant Singh filed objections claiming that in 1986 the tenancy had been transferred by Skipper Sales Private Limited in favour of Skipper Towers Private Limited, respondent No. 1. Thereafter amended objections were filed. Additional Rent Controller, being the executing Court, dismissed the objections vide its order dated 30. 7. 1997.


(2) AGGRIEVED by the said order of the Additional Rent Controller, respondent No. l-Skipper Towers Private Limited filed an appeal before the Rent Control Tribunal, Tribunal modified the order of the Additional Rent Controller dismissing the objections of the Skipper Towers Private Limited and remanded the case back to the Additional Rent Controller for investigation by the Trial Court for concluding the evidence of the Objector to determine about the status of Skipper Towers Private Limited as a tenant.


(3) MR. G L Rawal, learned counsel appearing for the respondent No. 1-Skipper Towers Private Limited, has argued that rent was paid by Skipper Towers Private Limited for almost ten years and he contended that initially Skipper Sales Private Limited was taken as a tenant in suit property when two families headed by Dr. Inderjit Singh and Professor Harbans Singh floated various companies carrying on various businesses in the name of Skipper Sales Private Limited, Skipper Towers Private Limited, Skipper Construction Private Limited, Skipper Builders Private Limited and Anand Construction Private Limited. Mr. Rawal has contended that rent was paid by Skipper Towers Private Limited through cheques which were deposited in the account of the petitioner and from the conduct of the petitioner, who was otherwise meeting the respondent No. l, it can be implied that petitioner has impliedly accepted respondent No. l as a tenant. In support of his contentions, Mr. Rawal has cited the cases of Sri Krishnapur Mutt, Udipi and am. Vs. P. Gopalakrishnayya and others AIR 1967 Mysore 65 and Jagannath v. District Judge Mathura and ors. AIR 1977 Allahabad 439, in which it is held I -


"on these facts, the question that arises is whether the petitioner was sub-tenant, as claimed by the landlord, or he was a tenant in his own right. A contract of tenancy can be express or implied. The Rent Control Act or the Urban Buildings Act does not lay down any specific manner of entering into the agreement, except, whether the tenancy is created under the Act itself, by an allotment order. The liability to pay rent, under the Act, is determinative of the relationship between the landlord and the tenant. It has been observed by Anson in his book of law of Contract, 23rd Edition, page 29: -


"the intention of the parties is a matter of inference from their conduct and the inference is, more or less, easily drawn according to the circumstances of the case. "


(4) THE conduct of the landlord in accepting the rent with the knowledge that the petitioner was carrying on business in his own right may lead to an inference that the intention of the parties was to create the relationship of landlord and tenant. The landlord did not file any affidavit on behalf of Sheo Barat Lal, nor did he himself state on oath to deny the allegations made on behalf of the petitioner. Payment of rent is an offer and if it is accepted by the person who is competent to accept it then an implied relationship of landlord and tenant arises. The intention of the parties being clear, a binding contract came into being when Sheo Barat Lal accepted the rent from the petitioner. "


(5) IT was contended that in the year 1986 a bifurcation took place in the said families and respondent No. 1-Skipper Sales Private Limited, the tenant, fell in the hands of the family of Dr. Inderjit Singh and remaining companies fell in the hands of the family of Professor Harbans Singh and it was also agreed between them that the tenancy rights of the premises in question shall vest with Skipper Towers Private Limited. It was further argued by Mr. Rawal that it was with the consent of the decree holder, who was accepting the rent for so many years, that Skipper Towers Private Limited were taken as a tenant after 1987 onwards. It was also contended that in a mala fide manner original tenant, Skipper Sales Private Limited, did not file leave to defend application within the statutory period of 15 days and, therefore, order of eviction was passed against Skipper Sales Private Limited on 10. 12. 1995. It was further contended that, as a matter of fact, in the year 1986-87 when the bifurcation within two groups took place, it was a case of surrender of tenancy by Skipper Sales Private Limited and acceptance of tenancy by petitioner. He has further contended that the decree holder in the eviction petition himself has joined the present respondent No. 2, Skipper Towers Private Limited, as respondent No. 6 apart from other respondents, so that in the event of its claiming themselves as a tenant, its claim, if any, put forth for final adjudication may be noticed at the stage of disposal of the eviction petition instead of waiting for execution and response by it. Mr. Rawal has contended that in spite of making Skipper Towers Private Limited and others as respondents the decree holder chose to drop all the respondents after the main respondent No. 1-tenant, Skipper Sales Private Limited, failed to file the application for leave to defend within the statutory period of 15 days and, therefore, the whole exercise was a mala fide exercise in order to obtain possession from respondent No. 1. In support of his contentions, Mr. Rawal has relied upon Smt. Vidyawanti Vs. Tokan Dass 1974 RLR 23


". . . . . . . . . . . . . It is obvious that a person whose title is independent to the title of the landlord himself and against whom the order for eviction is not passed will certainly be covered by the proviso and will be excluded from the substantive part of section 25. This needs no argument at all. But the question is whether a person whose title to the premises is not that of an owner and is not independent of the landlord can be covered by the proviso and excluded from the substantive part of section 25. We are of the view that a person who claims to be the real tenant of the landlord as distinguished from the person against whom the orders for possession has been passed in favour of the landlord claims a title which is "independent" within the meaning of the proviso. For, the order is binding only on the person against whom it was passed on the assumption that such a person was a tenant of the landlord. It is not binding on a person who claims to be tenant of the landlord in his own right and who does not claim through the persons against whom the order was passed. For, the word "title" can include the title or a tenant and is not restricted to the title of an owner. "


(6) HE has also cited the case of Kailash Chand Vs. Hemvati etc. 1974 RLR 549 in support of his contentions. On the basis of aforesaid authorities, Mr. Rawal has contended that the order of eviction was binding only on the tenant whose interest has been determined and the same was not binding on the present respondent No. 1, who claims a title to the premises independent of the tenant. He has also cited, in support of his contentions, 1966 (3) C. C. C. 65.


(7) NEXT argument of the learned counsel for the respondent was that this Court while exercising the powers under Article 227 of the Constitution of India will not interfere with the finding of fact like the Court of appeal and cited the case of Babhutmal Raichandoswal Vs. Laxmibai R. Tarte and am. AIR 1975 SC 1297. Mr. Rawal has further contended that the Rent Control Tribunal' had only directed the Additional Rent Controller to record the evidence of the parties so as to return the finding with regard to the status of the objector, respondent No. l, herein, as a tenant and High Court while exercising its powers under Article 227 of the Constitution will not sit over the judgment of the Appellate Court.


(8) ON the other hand, Mr. Arun Mohan, learned counsel appearing for the petitioner, has contended that the plea of the tenancy being transferred by Skipper Sales Private Limited in favour of Skipper Towers Private Limited is neither here nor there as Waiver by conduct which is sought to be pleaded and implied is not available to the respondent. Mr. Arun Mohan has further contended that the case of the petitioner was not that the possession was surrendered or handed back to the landlord and the case only depends upon the alleged oral consent. Learned counsel controverting the arguments of the petitioner has contended that Section 14 (l) (b) of DRC Act provides that such a consent has to be in writing.


(9) I have given my careful consideration to the arguments advanced by the learned counsel appearing for both the parties. The learned Additional Rent Controller has recorded in para-8 of the impugned order dated 30. 7. 1997 that the respondent No. 6, present respondent No. 1-Skipper Towers Private Limited, was also served, therefore, the arguments of Mr. Rawal that respondent No. 6, respondent No. l herein, was dropped as no leave to defend application was filed by respondent NO. 1, does not merit any consideration rather the arguments are contrary to the record. Respondent No. 1 having been served in the eviction petition chose not to file any independent application and when tenant, Skipper Sales Private Limited, chose not to file the leave to defend application, it was natural for the petitioner in the eviction petition to drop all the respondents as decree of eviction was passed.


(10) OBJECTION was filed by the responded No. l, Skipper Towers Private Limited, under Section 25 of the DRC Act. It is well established that a person claiming to be a tenant through a tenant is bound by an eviction order even if he is not a party in the case. However, Skipper Towers Private Limited, respondent No. 1 herein, was one of the respondents in the original eviction petition as respondent No. 6. As a matter of fact, the learned Additional Rent Controller returned a specific finding in para-9 of the impugned order in the following manner


"present objections have been filed by the objector under section 25 of the Act. It is an established law that a person claiming to a real tenant is bound by an eviction order if he is not a party in the case. As has been discussed above the present objector's name appears as respondent No. 6 'skipper Tower Pvt Ltd' in the eviction petition and was duly served. By no stretch of imagination, he can be labelled as a person not a 'party in the case'. Not only this, admittedly Sh. Tejwant Singh was the director of the respondent NO. 1 'skipper Sales Pvt Ltd' prior to the alleged bifurcation of the business of the family. Respondent No. 1 came to the share of another brother. Clearly, the plea of not having 'knowledge' of eviction petition is only an alibi. Now coming to the claim of the objector that he is a tenant in his own right, objector relies upon the payment of rent through cheques from his account i. e. 'skipper Tower Pvt Ltd'. His contention is that he became tenant with the consent of the decree holder and byway of acquiescence. There is no dispute with the legal proposition that are payment of rent by itself does not create relationship of landlord and tenant. The parties must be ad-idem. Payment of rent does not amount to any right or title to possession. I derive support from a case reported as AIR 1954 Supreme Court 758. "


(11) SUPREME Court in Ram Saran Vs. Pyare Lal and am. (1996) 11 SCC 728 laid down the law


"by a unilateral action of the tenant of surrendering his right of tenancy in favour of a third party by delivering possession of the tenanted premises to the said third party, no new tenancy is created which may legally bind the landlord. By mere acceptance of rent for the tenanted premises tendered by the tenant in the name of the registered society, neither a new tenancy or a valid sub-tenancy in favour of the said registered society has been created. . . . . . . "


(12) THE Rent Act is a special statute governing and regulating tenancy and subtenancy. Such provisions in the special statute supersede the general law of tenancy if the provisions of the special statute are incompatible with the general law of tenancy. Under Section 14 of the Rent Act, mere knowledge of the landlord about occupation of the tenanted premises by the said registered society and acceptance of rent for the tenanted premises tendered by the tenant in the name of the registered society, will not create. a sub-tenancy unless induction of a sub-tenant is made with the written consent of the landlord. It is nobody's case that the landlord has given any written consent for induction of sub-tenant. There is no estoppel against statute. Hence, even if the landlord has accepted payment of rent for the disputed premises from the said society, such acceptance of rent will not constitute legal and valid sub-tenancy in favour of the registered society. Consequently, landlord will not be estopped from claiming eviction of unauthorised sub-tenant along with the tenant for indulging in inducting sub-tenant without lawful authority. "


(13) IN view of the fact that the respondent No. 1 itself has admitted that initially the property was let out to Skipper Sales Private Limited under Section 21 of the DRC Act, how in the absence of any written instrument it can be construed that mere acceptance of rent by the landlord would create relationship between respondent No. 1 and petitioner of a landlord and a tenant? In view of the specific mandate of Section 14 (l)b) of the DRC Act in the absence of any written consent, respondent cannot claim any independent right in the tenancy of Skipper Sales Private Limited. There is no estoppel against a statute. It does not sound to reason that it was agreed that the tenancy rights of Skipper Sales Private Limited shall vest in the hands of Skipper Towers Private Limited in the absence of any date, resolution of any of the companies and consent of the respondent. In view of the vertical split between two groups, Skipper Sales Private Limited was on one side and remaining companies were on the other, how the tenancy rights in respect of premises let out to Skipper Sales Private Limited could vest with Skipper Towers Private Limited which, according to the case of the respondent itself, was a different group. No resolution of the Board of Directors of any of the companies was brought on record by the respondent No. 1 before the Additional Rent Controller. Nothing has been brought on record to show that there was any written consent for such assumption as has been pleaded by the respondent. Not even specific date has been given by the respondent with regard to alleged assignment. In spite of all these facts, the order of the Rent Control Tribunal virtually has resulted in patent illegality in law by remanding the case back to the Additional Rent Controller by mis-applying the ratio of Kailash Chand Vs. Hemvati etc. 's case (supra). In Smt. Vidyawanti Vs. Tokan Dass's cuse (supra) the Court came to the conclusion in view of the fact that Pishori Lal, original tenant in that case, died leaving his widow Smt. Vidyawanti and the Court held that a person who claims to be a tenant of the landlord and does not claim through the person against whom the order of eviction has been passed, is a person having an independent title to the premises as provided within the meaning of proviso of Section 25 of the Act.


(14) THE reliance made by the Tribunal on the case of Kailash Chand Vs. Hemvati etc. 's case (supra) was also mis-founded as in that case the sub-tenant was admittedly in occupation of the property in question for the last 30 years and had taken electricity connection with the knowledge of the landlord since 1962 whereas proceedings for eviction were started in the year 1964,


Section 25 of the DRC Act is as follows


Vacant possession to landlord.-


Notwithstanding anything contained in any other law, where the interest of a tenant in any premises is determined for any reason whatsoever and any order is made by the Controller under this Act for the recovery of possession of such premises, the order shall, subject to the provisions of Section 18, be binding on all persons who may be in occupation of the premises and vacant possession thereof shall be given to the landlord by evicting all such persons there from:


Provided that nothing in this section shall apply to any person who has an independent title to such premises.


(15) FROM the plain reading it would be clear that the said Section intends to bind not only the tenant, who is a party to the proceedings, but all those who may be in occupation of the premises. However, only exception in the said Section is provided in the proviso which protects, from an or

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der of eviction, any person who has an independent title to such premises. The eviction order passed against tenant would be applicable vis-a-vis those persons who claim through the tenant either as subtenant, assignee, licensee or otherwise who have been inducted in the premises. These classes of persons have no protection of Section 25 of the DRC Act as to extend any protection would be inconsistent with the Legislative intention and will render the order of eviction nugatory. Now, can a person, who was neither a tenant nor claiming through tenant, nor prima facie could establish in the objection filed before the executing Court that he was inducted in the tenanted premises by implied consent, take shelter under the proviso of Section 25 of the DRC Act? Can such a person have an independent title to the premises? The answer is in the negative. To my mind, the Legislature never intended to bring in the fold of proviso to Section 25 of the DRC Act, a person who has no privity of contract of tenancy with the landlord and claims to have an independent title without any basis to remain in possession. If all such objections, after an order of eviction has been passed, are entertained and objection could only be decided after recording the evidence, the whole object of Section 25 of the DRC Act will be defeated. Therefore, in my view the case law cited by the learned counsel for the respondent is of no help to him. Respondent No. 1 has not established a prima facie case before Rent Control Tribunal so as to have a right to lead evidence to establish that he was a tenant in independent right. The order of the Rent Control Tribunal' setting aside the order of Additional Rent Controller was patently wrong and illegal. I, therefore, allow the petition, set aside the order of the Rent Control Tribunal dated 7. 1. 1998 and uphold the order passed by the Additional Rent Controller dated 30. 7. 1997. (16) PETITION is disposed of accordingly.
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