Gauri Shanker v. Hindustan Trust

K.S. HEGDE, J.

( 1 ) PREMISES owned by a. H F. were let to the Respondent Co. in 1943 by Krishan

Lal who was himself its Managing Director. He filed a partition suit in 1947 against

his two nephews, the appellant and Hari Shankar. He became Chairman of the

tenant in 1952 and his son-in law D. Sanghi became the Managing Director. The

parties compromised the partition suit and appellant became exclusive owner of Suit

premises from 1. 1. 58.

( 2 ) THEREAFTER the appellant gave notice to tenant Co. to pay rent to him from 1.

1. 58. Krishan Lal also wrote to the tenant Co. that all arrears of rent due after 1. 1.

58 should be paid to appellant. As he was not allowed to enter the premises and

take measurements he filed a suit for mandatory injunction on 28. 1. 58. In its

written statement the respondent company denied that the appellant was owner of

the property in dispute. On 23. 3. 59 appellant applied for fixation of standard went

against the respondent Co. impleading Krishan Lal and Hari Shankar as proforma

respondents. The respondent Co. in its. written statement dated 20. 5. 59 denied

the relationship of landlord and tenant between the company and the appellant

and claimed to be a tenant only under Krishan Lal. The appellant by notice dated 17.

8 59 sent through counsel claimed arrears of rent @ Rs. 300. 00 from 1. 1. 58 and

stated that in case arrears and future rent was not paid within the statutory period

the tenant would be liable for eviction. In reply the respondent Co. denied that it

was a tenant of the appellant. It asserted that it was only a tenant under Krishan Lal

at a rent of Rs. 100. 00 which had been paid to him regularly. The appellant filed an

eviction petition on 27th October 1959 on the ground of non-paymt of rent and also

impleaded Krishan Lal and Hari Shanker as proforma respondents. The respondent

Co. denied relationship of landlord-tenant but no plea was taken that the no dee to

quit had not been served or that it was defective. The proceedings dragged on for

several years before the Rent Controller and the respondent co. For the first time on 23. 10. 67 applied under Order 6 R. 17 C P. Code for leave to amend its written

statement so as to introduce the plea of want of notice to quit. . Rent Controller

allowed the application on the ground that only a question of law was involved.

Ultimately decree was passed which was upheld in appeal by the Tribunal. High

Court reversed the same and appellant moved Supreme Court.) Paras 3 to 10 of the

Judgment are :-

( 3 ) IT may be mentioned that the appellant had applied under s. 15 of the Delhi

Rent Control Act 1958 for deposit of rent but the respondent company filed

objections denying the relationship of landlord and tenant. On January 15, 19 SO

the Rent Controller ordered the deposit to be made at the rate of Rs. 175. 00 per

month with effect from July 1, 1959. On December If 1962, s. 106 of the Transfer of

Property Act was extended to Delhi by means a notification made under s. 1 of that

Act. On July 14, 1965 the appellant moved the Rent Controller under sub-ss. (5) and

(7) of s. 15 of the Rent Act. It was submitted, interalia, that the tenant had failed to

deposit the admitted arrears of rent with effect from July 10, 1959 and future rent

every month in accordance with law and he had been disputing the title of the

landlord. It was prayed that his defence be struck off. On November, 19, 1965 a

detailed order was made by the Rent Controller. By that time certain amounts had

been deposited by the respondent. The Rent Controller condoned the default on the

part of the tenant on payment of Rs. 300. 00 as costs. The appellant filed an appeal

to the Rent Control Tribunal against the order of the Rent Controller but the same

was dismissed against which a second appeal was preferred by him to the High

Court on January 19, 1967. Finally on August 28, 1968 the Rent Controller ordered

the eviction of the respondent. An appeal was filed against that order to the Rent

Control Tribunal.

( 4 ) THE Tribunal examined fully and with care the entire material on the sole point

that was argued before it and came to the conclusion that the appellant was the

exclusive owner of the premises in dispute and that he was entitled to recover

arrears of rent from the tenant, namely, the present respondent. The Tribunal

affirmed the finding of the Rent Controller on that point. The other question which

appears to have been argued before the Tribunal was the effect of non compliance

with the order made under s. 15 (4) of the Rent Act. It was conceded before the

Tribunal that the tenant did not deposit the arrears of rent within the period of two

months of the receipt of the notice of demand sent by the landlord. It was urged on

behalf, of the present appellant before the Tribunal that the protection granted to

the tenant from eviction from the demised premises could be availed of by him only

if he complied strictly with the order made under s. 15 (4) read with s. 15 (1) of (hi

Rent Act in respect or his liability to deposit the arrears of rent and rent accruing

after the date of the making of the order under S. 15 (4) The Tribunal followed a

judgment of the Delhi High Court and upheld the contention raised on behalf of the

present appellant. In paragraph 15 of the order the Rent Control Tribunal stated as

follows :- "no other point having been urged before me, the result is that the appeal

fails. . . . . . . . . "

( 5 ) THE present respondent, namely, the tenant filed an appeal to the High Court

under s. 39 of the Rent Act Sub-section (2) of that section provides that no appeal

shall lie unless the appeal involves some substantial question of law. It ts difficult to

understand how any substantial question of la'. v arose when the order of the Rent

Control Tribunal is properly considered and examined. As is apparent from

paragraphs 7 and 15 of the Tribunal's judgment extracted above the sole point on

which the controversy has centered related to the existence of relationship of

landlord and tenant between the parties. It was expressly stated that no other point

was raised with the exception of the question relating to non-compliance with the

provision of the order s. (15)4. The determination of the question whether a

relationship of landlord and tenant existed between the present appellant and

respondent depended mostly on the evidence produced at the trial and the Rent

Controller as well as the Tribunal had, on a complete examination of the same,

given a concurrent finding that the respondent had become the tenant of the

appellant.

( 6 ) THE High Court did not entertain and decide the appeal on the sole question

which was argued before the Rent Control Tribunal. Indeed four contentions were

sought to be raised before the High Court, one of which was that there was no

notice terminating the contractual tenancy and the notice of demand Exh. A57/1

was illegal and insufficient for the purpose The learned Judge discussed the facts

and the law on that point and held that the notice was not intended to and did not

determine the contractual tenancy. It was only a demand for arrears of rent

contemplated by clause (a) of the proviso to s. 14 of the Rent Act. The notice was,

therefore, invalid. It was stated in the judgment that the respondent before the High

Court did cot seriously dispute the aforesaid construction and the effect of the notice

but on his behalf it had been urged that the tenant had by denial of his rights as a

landlord renounced his character as a tenant within the meaning of clause (g) of s.

111 of the Transfer of Property Act thereby causing forfeiture of lease. As such the

contractual tenancy came to an end under s. 111 of the aforesaid act and there was

no necessity of any notice being served. In any case it was urged that the

commencement of the legal proceedings for eviction constituted sufficient notice. All

these contentions were repelled by the learned Judge. He set aside the order of the

Rent Controller and the Rent Control Tribunal directing eviction of the tenant on the

ground that there was no legal and valid notice terminating the contractual tenancy.

( 7 ) IT seems to us that the learned Judge did not are in mind certain salient facts

and circumstances as also the well settled legal principles in entertaining and

deciding points in appeal which had not been raised or which had been expressly

abandoned before the court. It is true that a question not agitated before the lower

appellate court or expressly given up there can be allowed to be raised if it is a pure

question of law but in permitting the same 90 to be done the court has to consider

whether in exercise of proper and judicial discretion such a point should be

permitted to be agitated when it has been conceded or abandoned before the court

below. While giving permission to argue the point the court has to look at all the

facts and circumstances ; the conduct of the parties seeking to raise that point is of

great importance. In than present case as soon as the premises in dispute fell to

the share of the appellant in 1958 by virtue of the compromise decree in the suit for

partition the appellant as was quite natural, asked the respondent to pay the rent to

him. We have had occasion to refer to the correspondence which went on for a long

time between the appellant and the Managing Director of the respondent company

and at every step the latter was taking up a very unreasonable and equivocal

attitude. It cannot be overlooked that D Sanghi the Managing Director of the

respondent company was the son in-law of Krishan Lal who was the Chairman of

that company. He was also a close relation of the appellant. It would, there fore, be

legitimate to assume that he could not have been ignorant of the com promise

decree and the fact that the premises in dispute had fallen to the share of the

appellant who would, by operation of law. become the landlord of the- respondent

company. In spite of all this the appellant was driven to one proceeding after the

other and on each occasion his title was denied. Ultimately when the suit for eviction

was filed in 1959 it dragged on for several years. In the written statement which

was originally filed no plea was taken that a valid notice to terminate the contractual

tenancy had not been served and therefore" the petition for eviction was not

maintainable. The respondent waited for 8" years before seeking an amendment to

include a plea on the absence of such a notice. The trial court did allow the

amendment but in our opinion no such amendment should have been allowed on

account of the gross delay and laches on the part of the respondent in raising such

a plea. In such matters it must be remembered that if a technical plea of the nature

sought to be raised had been raised at an earlier stage the appellant could have

withdrawn the petition for eviction with liberty to file another petition after serving

the requisite notice. By not raising that plea for nearly 8 years a great deal of

prejudice was caused to the appellant. It has been pointed out by Mr. Chagia on

behalf of the respondent that an appeal was competent against the order allowing

amendment under s. 38 (1) of Ihe Rent Act and since no such appeal was filed the

order allowing amendment became final. Without expressing any opinion whether

such an order could be appealed against and on the assumption that an appeal was

competent the question still remains whether the learned Judge of the High Court

while allowing a point to be raised after it had been abandoned before the Rent

Control Tribunal should or ought to have taken this fact into consideration and in

combination with other facts should have disallowed any argument on the question

of the invalidity of the notice. In our judgment the course the litigation bet ween the

parties bad taken and the manner in which the plea was sought to be raised by an

amendment after eight years of the institution of the eviction petition and further

the abandonment of any contention based on that plea before the Rent Control

Tribunal were more than sufficient to persuade the court that any argument based

on the absence of a valid notice should not have been allowed.

( 8 ) MR. Chagla has pointed out that after the judgment under appeal was

delivered an application for review was filed by the appellant. In the judgment dated

March 17, 1971 it has been pointed out by the learned judge in paragraph 6 that

grounds 18 and 19 of the Memorandum of Appeal filed before the Tribunal

contained contentions relating to the validity of the notice. This is what the learned

Judge proceeded to say :-

( 9 ) WE are altogether unable to concur with the reading of the judgment of the

Rent Control Tribunal by the learned judge of the High Court. Even at the cost of

repetition we have BO hesitation in observing that the sole ground on which the

arguments were addressed to the Rent Control Tribunal were those which have

already been mentioned and the question of the factum and validity of a notice to

terminate the contractual tenancy was not at all raised, let alone pressed before the

Tribunal. On the other hand the judgment shows that all other contentions which

would include an argument relating to the validity of the notice were expressly

abandoned. It may be pointed out that raising grounds in the Memorandum of

Appeal is not sufficient to show whether a particular point was actually argued or

pressed before the court. If the court expressly says that only certain points have

been argued and no other point has been argued the statement in the Judgment

has prima facie to be accepted as correct It was open to the present respondent to

file a proper affidavit preferably of his counsel who had argued the case along with

the Memorandum of Appeal that such a point had been raised but the court

recording the concession had done so either wrongly or under some

misapprehension. No such affidavit was filed with the Memorandum of Appeal and

therefore we find no force in the submission of Mr. Chagla that the question of

notice had been raised at the time of arguments before the Rent Control Tribunal.

None of the other points proposed to be raised before the High Court was urged

before us.

( 10 ) IN the above view of the matter the judgment of the High Court has to be set

aside and that of the Rent Control Tribunal and the Rent Controller restored in the

appeal arising out of S. A. NO. 278/69. The other appeal arose out of S. A. 57/67

which had been filed by the appellant against the judgment refusing to strike out

the defence of the respondent company. This was dismissed by the High Court

without any tearing in view of the decision in the other appeal. As the main appeal

of the appellant arising out of the suit for eviction is being allowed it is unnecessary

to make any order in the other appeal as the same has become infructuous The

appellant will be entitled to costs in this court as also in the High Court The

Respondent company will have six months to vacate the premises and hand over

the possession to the appellant.