RAJINDER PARSHAD JAIN Vs. BAL GOPL DAS

JUDGEMENT

(1.) Three matters are before the Division Bench on reference made by a learned Single Judge of this Court. To appreciate the scope of reference and the question arising for decision it will be necessary to set out the factual background of each of the three cases in brief.

(2.) SAO 299/80 (Rajinder Prasad Jain v. Bat Gopal Dass & Ors.) The premises are having Municipal No.4896, Dayanand Road, Darya Ganj, Delhi. Rajinder Prasad, the landlord filed an eviction petition against the tenants Shri Balgopal Dass & Ors. on the ground available under Section 14(l)(k) of the Delhi Rent Control Act, 1958 (hereinafter 'the Act', for short). According to the landlord, the premises were let out for residential purpose only. However, the same are being used by the tenant for non-residential purpose as well. The user of the premises is in contravention of the terms .of the lease on which the landlord is holding the premises from the DDA. The tenant has failed to discontinue such inconsistent user in spite of a previous notice having been given to him. 2.1. It appears that prior to the initiation of these proceedings a petition for eviction of the tenant on the ground available under Section 14(l)(k) of the Act was filed which was dismissed by the Addl. Rent Controller, whose decision was upheld in appeal by the Rent Control Tribunal. The same has achieved a finality. It was submitted on behalf of the tenant that the earlier judgment constitutes res-judicata and in view thereof the present petition is barred by Section 11 of the CPC. 2.2. The certified copies of the judgments of the ARC dated 26.10.64 and of the Tribunal dated 3.5.65 have been brought on record respectively marked as RW- 1/1 and RW 1/2. The finding recorded in the previous judgment between the parties is that the landlord having let out the premises for use as residential as well as non-residential, the landlord was estopped from questioning the user of certain portion of the premises by the tenant/sub-tenant for non-residential purpose and hence the ground under Section 14(1)(k) of the Act was not available to the landlord. 2.3. The plea of the tenant has been upheld by the Addl. Rent Controller as also the Tribunal in appeal, leading to the dismissal of the eviction petition. The aggrieved landlord has come up in the Second Appeal to this Court. On 13th July, 1987, the appeal came up for hearing before H.C. Goel, J. (since retired). He noticed conflict of opinion between two sets of Single Bench decisions of this Court and hence felt the need of referring the matter to a Division Bench for resolving the conflict. It will be useful to extract and reproduce the following part of the order of reference dated 13.7.87: "The question for consideration in this case has been as to whether the landlord in such a case is estopped from contending that the premises have been used by the tenant fora purpose which is contrary to the terms of the lease granted by the DDA having himself let the property for commercial purposes or the provisions of Section 14(1 )(k) of the Act are still attracted to such a case. The Supreme Court in the case of Faquir Chand v. Ram Rattan Bhanot, 1973 RCR 221, held that there is no estoppel against statute and irrespective of the purpose for which the property was let, if the property is used by the tenant contrary to the terms as imposed upon the landlord by the terms of the lease granted by the DDA, it would attract the provisions of Section 14(1 )(k) of the Act. Yogeshwar Dayal, J. in the case of Dr. Sham Singh v. 0m Prakash, SAO 355/68 decided on May 21, 1974 held that in view of the finality attached to the earlier dedsion between the parties, the subsequent petition for eviction would be barred by the principles of res-judicata. The decision of the Supreme Court in the case of Taquir Chand (supra) was duly noticed by the learned Judge. Following this judgment of Yogeshwar Dayal, J. the Rent Control Tribunal had upheld the judgment of the Addl. Rent Controller. 2. A contrary view has, however, been later taken by the Sultan Singh J. in two cases (i) Rajeshwar Dayalv. Nanak Chand, 21 (1982) DLT 45 and (ii) Lila Wati Dutta v. Karol Bagh Union Club & DDA, 20 (1981) DLT 52. The decision of Yogeshwar Dayal J. in the case of Dr. Sham Singh (supra) was not brought to the notice of Sultan Singh J. while deciding either of the two cases. This conflict of decisions by the two learned Judges of this Court requires to be resolved by referring the matter to a Larger Bench."

(3.) SAO 275/78 (H.C. Thukral v. Ashok Saran) The premises are old No. 8614 present No. 40-B, Flat No. 6 and Servant Qtr. No. 40/14, Pyare Lal Building, Janpath, New Delhi. The only ground of eviction pleaded is under Section 14(1)(k) of the Act. Under the perpetual lease by the Government of India to the landlord Ashok Saran, the second and the top floor have to be used for residential purpose only. However, the tenant is using the property for non-residential purpose which user has not been stopped in spite of a notice of demand for the purpose having been served by the landlord on the tenant. 3.1. Prior to the filing of the present eviction petition, there was an earlier round of litigation. It was also an eviction petition which ultimately terminated in favour of tenant, denying order of eviction to the landlord. The tenant took up the plea of the present eviction petition being barred by res-judicata. The landlord sought to sustain the maintainability of the present eviction petition on two grounds: firstly, that the ground of eviction under Section 14(1)(k) of the Act was not taken in the earlier petition for eviction and hence it was not in issue; secondly, that subsequent to the pronouncement of the earlier judgment there has been a change in the law and so also the earlier decision would not operate as res-judicata. 484 3.2. Copies of the decisions in the earlier proceedings have been brought on record.' A perusal of the orders shows that eviction of the tenant was sought for in the earlier eviction petition on the ground that the tenant and his family members have not resided in the tenanted premises for a period of six months immediately preceding the date of the filing of the petition and that the tenant had acquired an alternative accommodation suitable for his residence. It was found that the premises were taken by the tenant for use as office-cum-residence when he was a bachelor. On his marriage he had shifted his residence to some other place and had continued to use the whole of the tenanted premises for non-residential purpose. On these grounds eviction was negatived by the Additional Controller as also by the Rent Control Tribunal. 3.3. It appears that when the matter reached in second appeal to the High Court, the landlord made an alternative arguments seeking eviction of the tenant on the ground of inconsistent user attracting the applicability of Section 14(1 )(k) of the Act. However, the plea was not sustained and the dismissal of the eviction petition was upheld by the High Court. 3.4. A perusal of the judgment of the High Court dated 19th August, 1971 passed in SAO 180/72 Raghunandan Saran Ashok Saran v. H.C. Thukral (reported as 1972 AIR CJ 289) shows that relief to the landlord by reference to Section 14(1 )(k) of the Act was negatived on very many grounds namely: (i) The ground was not taken in the eviction petition; (ii) Notice contemplated under Section 14(1)(k) was not served on the tenant prior to the filing of the eviction petition; (iii) The landlord was estopped from taking the plea in view of his having himself let out the premises for non-residential purpose. 3.5. The plea of the eviction petition being barred by res-judicata has been overruled by the Additional Rent Controller forming an opinion that any finding recorded on a ground which was not in issue could not operate as res-judicata. The learned Addl. Rent Controller has also held that subsequent to the date of previous decision between the parties there is available pronouncement of the Supreme Court in Faquir Chand v. Ram Rattan Bhanot, 1973 RCR 221 negativing the plea of estoppel being attracted to the fact situation like the present one and so also earlier decision would not operate as res-judicata in view of the change in law. The view taken by the Addl. Rent Controller has been upheld in appeal by the Rent Control Tribunal also. However, the operative part of the order of Addl.Rent Controller has been modified a little. 3.6. The tenant has come up in Second Appeal registered as SAO 275/78. The landlord has filed a cross-appeal registered as SAO 381/78. 3.7. On 27.3.97, the appeal came up for hearing before Usha Mehra, J. who formed an opinion that the question arising for decision in this appeal was one covered by the order of reference passed by H.C. Goel, J. in SAO 299/80 and hence this matter be also placed before a Division Bench.