JUDGMENT
S. Mukherjee, J.
IA NO. 177/02
1. This application has been filed under Order 7
Rule 11 by the defendants, primarily on the ground that
there is a bar in law to the entertaining of the present
suit, in terms of Section 50 of the Delhi Rent Control
Act which reads as under:
“50. Jurisdiction of civil courts barred in
respect of certain matters –
(1) Save as otherwise expressly provided in
this Act, no civil Court shall entertain
any suit or proceeding in so far as it
relates to the fixation of standard rent
in relation to any premises to which this
Act applies or to eviction of any tenant
there from or to any other matter which
the Controller is empowered by or under
this Act to decide, and no injunction in
respect of any action taken or to be
taken by the Controller under this Act
shall be granted by any civil court or
other authority.
(2) If, immediately before the commencement
of this Act, there is any suit or
proceeding pending in any civil court for
the eviction of any tenant from any
premises to which this Act applies and
the construction of which has been
completed after the 1st day of June,
1951, but before the 9th day of June,
1955, such suit or proceeding shall, on
such commencement, abate.
(3) If, in pursuance of any decree or order
made by a court, any tenant has been
evicted after the 16th day of August,
1958, from any premises to which this Act
applies and the construction of which
has been completed after the 1st day of
June, 1951, but before the 9th day of
June, 1955, then, notwithstanding
anything contained in any other law, the
Controller may, on an application made to
him in this behalf by such evicted tenant
within six months from the date of
eviction, direct the landlord to put the
tenant in possession of the premises or
to pay him such compensation as the
Controller thinks fit.
(4) Nothing in Sub-section (1) shall be
construed as preventing a civil court
from entertaining any suit or proceeding
for the decision of any question of title
to any premises to which this Act applies
or any question as to the person or
persons who are entitled to receive the
rent of such premises.”
2. The contentions of the defendant/applicant in
brief, is that two eviction petitions have been filed by
the plaintiff under the ground for eviction contemplated
by Section 14 of the Delhi Rent control Act, which
reads as under:
“14(1)(j) that the tenant has, whether before
or after the commencement of this Act,
caused or permitted to be caused
substantial damage to the premises.”
3. These eviction petitions are stated to have been
filed on the allegation of “substantial damage” to the
premises, and since the rent of the suit premises is less
than Rs. 3,500/- per month, it is submitted by the
defendant that therefore to these premises only the said
special enactment (viz DRC Act) will apply, and plaintiff
is liable to be held to be confined to her remedies under
the said Act only; and that as such she cannot take
recourse to filing a civil suit involving a prayer for
restoration of the premises back to the original
condition, more particularly in view of Section 50 of the
DRC Act which ousts the jurisdiction of the civil Court.
4. The submission of learned counsel for the
plaintiff, on the other hand, is that there are prayers
for permanent mandatory injunction also. Apart from
that, according to learned counsel for plaintiff, the
Rent Controller, under the DRC Act, has the option of
either ordering the restoration of the damage or of
granting compensation to the landlord. The plaintiff in
the present case, being desirous of only securing back
the restoration of the premises, therefore he would be
entitled to pursue with the civil suit, notwithstanding
the eviction petitions filed by her subsequent to the
institution of this suit.
5. The following relief have been claimed in the
prayer clause of the suit:
“(A) permanent injunction restraining the said
defendant(s), its Directors, employees,
officers, agents, security guards,
contractors and/or workmen from carrying
out any illegal and/or unauthorised
construction in an around the demised
premises forming part of the building No.
G-11, Maharani Bagh, New Delhi-110 065;
(B) permanent injunction restraining the said
defendant(s), its Directors, employees,
officers, agents, security guards,
contractors and workmen from carrying out
any damage much less substantial damage,
alterations, addition and/or renovations
to the present original super structure
of the demised portions of the said
premises bearing No. G-11, Maharani Bagh,
New Delhi-110 065 including the
floorings and tilings thereof;
(C) mandatory injunction requiring the said
defendant (s), its Directors, employees,
officers, agents, security guards,
contractors and workmen to restore the
demised premises forming part of the
building G-11, Maharani Bagh, New Delhi
to their original condition;
(D) permanent injunction restraining the said
defendant (s), its Directors, employees,
officials, agents, security guards,
contractors and workmen from providing
unhindered and uninterrupted right to the
plaintiff, her family members, authorised
representatives and/or workmen to inspect
the demised premises at all reasonable
hours, particularly after prior
intimation;
(E) permanent injunction against the said
defendant (s), its security guards,
contractors and workmen from obstructing,
interfering and/or hindering the
plaintiff’s right of free ingress and
egress into the premises forming part of
the building bearing No. G-11, Maharani
Bagh, New Delhi-110 065 that are in the
actual, physical possession, use and
occupation of the plaintiff, i.e. one
garage on the left hand side and two
servant quarters on the first floor of
the annexe building;
(F) permanent injunction against the said
defendant (s), its Directors, employees,
officers, agents, security guards,
contractors and workmen from subletting,
assigning or otherwise parting with the
possession or even from creating any
third party interest in any form
whatsoever in respect of the demised
portions of the premises interference in
this suit;
(G) permanent injunction, against the said
defendant (s), its Directors, employees,
officers, agents, security guards,
contractors and workmen from changing or
converting the user of the demised
portions of the premises in reference in
this suit from residential to
commercial/industrial;
(H) for such other or further reliefs
including costs of this suit as this
Hon’ble Court may deem fit and or proper.
6. It would be appropriate to deal with the above
prayers item-wise.
7. As regards Prayers (A) and (B) by way of
permanent injunction for restraining the defendant from
carrying out any illegal or unauthorised construction, it
is submitted by the learned counsel for the defendant
itself that defendant is prepared, without admitting any
of the contentions of the plaintiff, the statement may be
recorded on defendants behalf that no construction work,
or addition, or alteration, or renovation of any kind
whatsoever will be carried out in respect of the premises
in question.
8. As such, prayers ‘A’ and ‘B’ accordingly would no
longer survive for consideration in view of the said
statement made on behalf of the defendant. Prayer ‘C’
will be deal with in detail hereinbelow after prayer G.
9. As far as prayer D is concerned, learned counsel
for the defendant submits, that subject to being given
notice and reasonable time for compliance, the defendant
has no objection to the inspection of the demised
premises by the plaintiff, or by the authorised
representative of the plaintiff. The said prayer also
therefore does not survive for consideration.
10. As regards prayer E, learned counsel for the
defendant has assured that in relation to one garage
which is in possession of the plaintiff, with entry from
the back side, the ingress and egress of plaintiff, as
also the use and occupation thereof by the plaintiff,
shall not be obstructed.
11. In response to prayer ‘F’ and ‘G’, learned
counsel for the defendant has submitted that they
undertake not to carry out any of the activities referred
to in the said prayers E & G, and therefore these prayers
also do not survive for consideration.
12. That leaves only prayer ‘C’. As regards Prayer C
regarding plaintiff’s claim for restoration of the
premises to their original condition, in this regard,
while it is no doubt true that in the case of some other
sub-clauses of Section 14(1) of the Delhi Rent Control
Act, such as subletting, since injunctive relief cannot
be granted by the Rent Controller, as such a Civil Suit
for injunction may be maintainable at earliest stage viz
before subletting takes place, but once the premises have
been subjected to damage, as is the allegation in the
present case, then the only remedy open to the land lord
of such premises, which are admittedly subject to the
DRC, Act viz having rental below Rs. 3500/- per month,
would be to approach the Rent Controller under Section
14(1) of the Act, and not by way of a civil suit.
13. Not only would Section 50 stand in the way, as a
bar to the suit, but even otherwise it is only
appropriate that in relation to such premises which are
covered by the statutory provisions of the DRC Act, which
Act is duly containing both the right and remedy in this
behalf, then it would be incumbent upon the plaintiff to
take resort to that remedy only. As a corollary it would
follow that it is not available to the landlord to take
recourse to the remedy of filing a civil suit.
14. Learned counsel for the plaintiff has relied upon
the judgment of Single Judge of this Court delivered in
Suit No. 2482/94, titled S.K. Mehta v. Consilium
(P) Ltd. wherein it was held, while dealing with an
application under Section 10 CPC, that in view of the
optional nature of the alternative directions possible
under the Rent Act, the proceedings of the civil suit
will not be stated. That context was wholly different.
Even otherwise, once the parliament has legislated on the
matter, and has laid down that Rent Controller may direct
either restoration of the premises, or may award damages,
as the case may be, then that would certainly over-ride
the private rights of the landlord in this case in the
context of her contention that she would not be content
with an award of damages even if statutorily so provided
and therefore she must be permitted to pursue her civil
suit for relief of restoration back of the premises to
their original condition. In the view I am taking, I
felt to need to go into the other crucial aspect that
injunction is in any case, only a discretionary remedy.
15. Under Section 9 of the Code of Civil Procedure
all suits are maintainable except for those which are
barred. It is the admitted position that the suit
premises in the present case, having a rental below
Rs. 3500/- per month, fall within the scope of the Delhi
Rent control Act. The only question which needs
consideration is whether a regular civil suit will be
maintainable in relation to a cause of action which is
also covered by Section 50 of the Delhi Rent
Control Act. My attention has been drawn to the Division
Bench of this Court in RFA (OS) 11/94 titled Fhiroz Adi
Vandrevala v. Major Shanti Kumar Sharma reported at
1995(1) RLR page 720. It has been laid down in the said
case that in view of the express provision of Section 50
of the Delhi Rent Control Act, the civil courts would not
have jurisdiction in regard to matters which fall within
the purview of the Rent Controller. It is not denied,
and it cannot be denied, that orders regarding
restoration of the premises of their original condition
can be obtained by recourse to Section 14 of the
said Act. It would follow therefore that the civil court
has no jurisdiction to entertain such a suit which would
then stand barred by law in terms of section 50 of the
Act also.
16. In the said Division Bench judgment, the appeal
was allowed and the order of the Hon’ble Single Judge was
set aside only on the ground that the relief regarding
permanent injunction in protecting the peaceful
possession of the plaintiff, does not fall within the
purview of the Delhi Rent Control Act.
17. That is not the case in the present suit. Here
is a case which would fall squarely within the four
corners of Section 14(1)(j) of the Act. In fact, the
plaintiff in her submissions has virtually accepted this
position, because the plaintiff has primarily made a
grievance to the fact that the Rent Controller while
exercising power under Section 14(1) of the Act, has
the discretion to either direct restoration of the
premises to the original condition or to award damages.
The emphasis of the plaintiff seems to be that the second
alternative relief regarding damages, being not
acceptable to the plaintiff, and hence the suit should be
held to be maintainable for plaintiff’s satisfaction
regarding the first alternative of above relief, which
plaintiff wants to secure.
18. There is a fundamental fallacy in this argument.
Once Parliament has enacted a law providing for these two
eventualities in the case of a tenant to whom the Rent
Act applies, then where the tenant has committed breach
of the obligation towards the landlord by carrying out
unauthorised addition/alteration, then the legal right
of the plaintiff shall stand governed and limited by the
law enacted by the Parliament for the said purpose, and
it would not be open to an individual to claim that just
because the other of the two alternatives of legal
redressal viz either restoration or damages, is not
acceptable to her, therefore in her individual case there
should be an authorisation to by-pass the statutory
provisions, by allowing the plaintiff in this case to
maintain a civil suit, even where as in the present case,
the plaintiff has elected to voluntarily take proceedings
under the DRC Act which are now presently pending before
the Court of Rent Controller.
19. Even if there was some doubt regarding the legal
position so-long-as plaintiff had stuck to her guns
regarding maintainability of the civil suit as being the
only proper and efficacious remedy, however, no soon as
the plaintiff of her own free will, and violative, has
instituted two eviction petitions against the defendant,
including on the ground of substantial damage to the
premises and the prayer for the restoration back of the
same, there can be no manner of the doubt that the civil
suit would not be maintainable in relation to prayer ‘C’
of the plaint, which as submitted above, is the only
surviving prayer requiring consideration by this Court
pursuant to the assurances/concession in relation to
other prayers made by the learned counsel for the
defendant during the arguments held in this matter.
20. There is another well-settled principle regarding
maintainability of the civil suit, viz that if the right
and remedy are both contained in a special statute, then
the general remedy of filing of a regular civil suit,
will not be available. In this connection reference may
be made to the judgment of the Apex Court in the case of
Premier Automobiles Ltd. v. Kamlekar Shantaram Wadke
of Bombay and Ors., to
the effect that where a right is created by statute and
the method of enforcing the right or of redressing the
grievance, is contained in the statute creating the
right, then the general remedy of suit will be impliedly
barred.
21. In view of the above, and taking into account the
assurances/concession of the defendant which have been
duly noted hereinabove in this judgment, the only relief
in the suit which survives for consideration viz prayer
(c), stands clearly barred in view of the provisions of
Section 50 of the Delhi Rent Control Act.
22. Accordingly the plaint is rejected in relation to
the sole surviving prayer (c) as set out in the plaint.
As regards all other prayers, the defendant is held bound
by the assurances as recorded in para 7 of the judgment.
Once the defendant is held bound by the terms of the
assurances held out to this Court, no relief beyond the
same is warranted in favor of the plaintiff in relation
to the other prayers (A)(B)(D)(E)(F)(G) and (H).
23. With the above observations, the plaint is
rejected and the suit disposed of in the above terms, but
with no order as to costs.