PREM NATH GUPTA Vs. KAMAL KRIPLANI

JUDGEMENT

(1.) The appellants who are owners and landlords of house no. 55 Masjid Moth Extension New Delhi obtained permission under Section 21 of the Delhi Rent Control Act (hereinafter referred to as the Act) from the Additional Rent Controller (hereinafter referred to as the Controller) to let out the first floor of the said house to the respondent by way of an application dated 16th February, 1978. It was stated in the said application that the appellants who were living on the ground floor did not require the first floor for their use for a period of three years because their son was posted outside Delhi and was expected to come back after three years when the first floor would be required. Alongwith the application, the appellants filed the proposed lease deed setting out the terms and conditions which specifically stated that the letting purpose was purely residential. The parties appeared before the Additional Rent Controller on 17.2.1978 and made their respective statements. The Appellants in their statement stated that their two sons are posted at Madras and Kanpur and are in service and shall be returning back after three years and the appellants will require the permises after three years. The appellants prayed that they be permitted to create limited tenancy for a period of three years. The respondent accepted the statement of the appellants as correct. I he respondent confirmed that the permises will. be used for residential purpose only and will vacate the permises after three years. On the same day, the Additional Rent Controller granted the permission to let out the said premises for a period of three years. A month before the expiry of the period of limited tenancy, a notice was sent by the appellants to the respondent on 12.1.1981 asking the respondent to vacate the permises at mid night of 16th February, 1981. The respondent did not respond to the said notice and, therefore, on 24.2.1981 after about a week of expiry of the limited period of tenancy the appellants moved an application for recovery of possession of the first floor of the premises. The appellants in the said application mentioned that the appellant's son is now posted at Delhi but has to live in a rented accommodation because the respondent has failed to vacate the premises. The respondent filed his objections on 31.7.1981 which were later amended on 22.2.1984. The main objection of the respondent was that the appellants had obtained the permission by playing a fraud on the Court inasmuch as they had enough accommodation in their possession on the ground floor which could accommodate their sons. It was submitted that one of the sons of the appellants had not returned to Delhi and the other son Shri O.P. Gupta who had returned to Delhi had been provided separate accommodation by his employer and the rent was being paid by the employer and, therefore, he did not require the accommodation let out to the respondent for his use. It was also stated that the appellants who are retired persons do not have any source of income and, therefore, are not in a position to suffer the loss of Rs. 1000.00 per month which is recovered by them as rent from the first floor permises. A further allegation was made that the appellants wanted increase in the rent which the respondent did not agree and, therefore, the appellants were seeking recovery of possession. A reply was filed by the appellants to these objections and it was stated that the appellants would like their son to live in the same house so that he could provide security to them in their old age. The Controller by his judgment dated 14.2.1986 held that the permission granted under Section 21 of the Act to let out the premises for a period of three years is invalid and cannot be acted upon. The Controller observed that there was enough accommodation with the appellants to accommodate their son on the ground floor and if the appellants had disclosed the extent of accommodation available with them on the ground floor at the time of grant of permission under Section 21 of the Act, the Controller in all probabilities would not have granted the permission. Since the appellants bad failed to disclose this fact, the permission was obtained by active concealment and practising fraud upon the Court. The Controller further observed that Shri O.P. Gupta, the son of the appellant was not examined to prove that he had ever told his parents that there was a likelihood of his transfer to Delhi within three years from 17.2.1978 or that after the transfer be intended to live with the parents. The Controller further observed that adverse inference should be drawn from the non-examination of Shri O.P. Gupta, the son of the appellants. Being aggrieved by the judgment of the Controller, the appellants filed an appeal before the Rent Control Tribunal (hereinafter referred to as the Tribunal) which was dismissed by judgment dated 6.11.1986. Before the Tribunal, the respondent reiterated the agruments made before the Controller and further submitted that a contradictory stand was taken by the appellants while obtaining the permission inasmuch as in the application the appellants had mentioned that they expected their son to return after three years whereas in their statements the appellants mentioned that their two sons were working at Madras and Kanpur respectively and were expected to come back after three years. The respondent submitted that had the Controller been told the correct position and if the appellants had stated that only one was to return after three years, the Controller would not have granted the permission to the appellants to let out the premises for the limited period of three years. It was submitted that the Controller was misled into believing that the two sons of the appellants were going to occupy the first floor of the premises. The Tribunal observed that the concealment of material facts and mis-statement made in the court by inducing to grant the permission is a nullity and makes a sanction inexecutable. The Tribunal further observed that it did not find any reason to differ with the finding of the Controller that the sanction order dated 17.2.1978 was invalid and inexecutable.

(2.) It was contended by the learned counsel for the appellants that it was not necessary for the appellants to produce their sons as a witness at the time of obtaining the permission nor it was necessary to examine the son even at the stage of execution once the fact that the son of the appellants was posted outside had been accepted. Learned counsel submitted that the son of the appellants in fact returned to Delhi one year before the lease was over but could not be accommodated on the first floor because the respondent was still living there and when the appellants obtained the permission, they had expected both their sons to come to Delhi. Learned counsel submitted that the second son of the appellants is working as an Electrical Engineer in Madras and when the permission was obtained in the year 1978 he had a transferable job though now he has reached higher position, he is not likely to be transferred back to Delhi. Learned counsel, therefore, submitted that there was no mis-statement of fact or fraud played upon the Court while obtaining the permission. Learned counsel further submitted that it was not necessary for the appellants to lead evidence at the stage of grant of permission to prove to the satisfaction of the Controller that the son was expected to come back. What is important is whether the expectation at that time was genuine or not and whether the sons had eventually now returned to Delhi or not. Learned counsel further submitted that in any event bona fide need of the landlord or the sons is not required to be gone into by the Controller either while granting the permission or while ordering execution or while issuing warrants of possession. Learned counsel relied on the judgment of the Supreme Court in Shiv Chander Kapoor v. Amar Bose, AIR 1990 SC 325 in support of this contention. Learned counsel further submitted that the tenant having failed to make an application for varying the order during the period of lease all his objections were an afterthought and he cannot be permitted to arise this objection at a late stage after the lease period had expired. Learned counsel relied on the judgment of the Supreme Court in Shiv Chander Kapoor's case (supra) and in Smt. Yamuna Maloo v. Anand Swarup, AIR 1990 SC 1725 in support of this contention. Learned counsel submitted that the respondent has continued to be in possession of the premises for 10 years after the period of lease had expired though he had given a statement that he will vacate the premises after three years.

(3.) On the other hand, learned counsel for the respondent submitted that the application filed by the appellants for permission was not specific, Neither the names of the sons nor their ages were given nor their place of employment was mentioned. Much stress was laid by the learnad counsel on the discrepancy between the averments made in the application and the statement of appellants before the Controller. Learned counsel vehemently submitted that the permission was granted by the Controller because the appellants had stated that their two sons are likely to come back after three years and if the Controller had known that only one son was to come back, he would not have granted the permission because the accommodation available on the ground floor was sufficient to accommodate one son. Learned counsel further submitted that the objections of the respondent cannot be thrown out as being belated because the respondent could have filed objections only after the period of lease had expired and he had come to know that both the sons of the appellants had not come back to Delhi. Rather, learned counsel submitted that the execution of the decree could only take place provided both the sons of the appellants had come back to Delhi. Learned counsel submitted that on reading the application it was clear that it was not an application for execution but it was an application for eviction. Thus, the Courts below were justified in considering the availability of the accommodation with the appellants at present. It was submitted that the appellants have constructed some more rooms on the second floor. There was enough accommodation with the appellants to accommodate their son and his family on the ground floor and the second floor. In any event, there were strained relations between the appellants and their son and his family and there was no likelihood of their son who is in Delhi of shifting to the first floor. Learned counsel submitted that since the permission was obtained by playing a fraud on the Court, the execution could not have been ordered and both the Courts below have rightly rejected the application for execution filed by the appellants.