Shri R.P. Kapoor (Huf) vs Holiday Home on 23 August, 2006

Delhi High Court
Shri R.P. Kapoor (Huf) vs Holiday Home on 23 August, 2006
Author: S K Kaul
Bench: S K Kaul


JUDGMENT

Sanjay Kishan Kaul, J.

1. The present dispute between the petitioner / landlord and the respondent / tenant has had a chequered history since the inception of litigation between the parties in the year 1990.

2. The subject matter of dispute is the property known as A 2/11, Safdarjung Enclave, New Delhi (hereinafter to be referred to as, the premises). The petitioner is the perpetual lessee of the plot in pursuance to the Perpetual Lease Deed dated 14.08.1964. The premises were let out to the respondent in the year 1980 for a period of 3 years and the tenancy is stated to have come to an end by efflux of time in the year 1983. It is, however, in the year 1990 that two legal notices were issued by the petitioner terminating the tenancy of the respondent and since the premises were not vacated, a suit for possession and recovery of damages was filed. It was the plea of the petitioner that the property was being misused and damage has also been caused to the property. The suit had, however, to be withdrawn subsequently in view of the objection of the respondent that the same had been filed by Shri R.P. Kapoor, while the property had been let out by Shri R.P. Kapoor (HUF). The petitioner had sought leave to file a fresh suit, but the same was not granted by learned Additional District Judge on the ground that there was no necessity to do so as R.P. Kapoor (HUF) could file a fresh suit after issuing a notice of termination of tenancy. The petitioner thereafter issued a legal notice dated 28.02.1995 and filed a fresh suit in July, 1995 for possession, recovery of arrears of rent and recovery of damages.

3. It appears that since there was misuse in the property, Delhi Development Authority (for short, DDA) as the perpetual Lesser claimed that the lease had been cancelled and in the year 1997 filed an application under Order I Rule 10 read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter to be referred to as, the Code) seeking to be imp leaded as a party on that account. The respondent naturally supported DDA. This application was allowed by the trial court, but the petitioner aggrieved by the same filed a civil revision petition bearing C.R. No. 1185/1997, which was allowed by the Order dated 23.04.2001 and the application filed by DDA was dismissed. The substratum of the reasoning of learned Single Judge of this Court in the said judgment is based on the plea of the petitioner that in a suit between a landlord and a tenant for possession on the ground that tenancy of the tenant had been terminated in accordance with law, the only question to be investigated by the Court was whether the tenancy had been terminated in accordance with law. Learned Judge observed that the Court is not required to go into the question as to whether the landlord had ceased to be the owner of the property and that tenant could not have denied the title of the landlord. Thus, the issue whether the lease was terminated or not became immaterial. The question whether the lease was terminated by DDA was not a question to be decided by the trial court and it was for the DDA to take action as may be permissible in law against the petitioner after termination of the lease.

4. The suit went to trial thereafter and while the petitioner produced two witnesses, the respondent produced nine witnesses. The case was set down for final arguments. The arguments were concluded by the petitioner and partly by the respondent when the respondent filed an application under Order VI Rule 17 read with Section 151 of the Code seeking amendment of the written statement. The plea of the respondent is that it is during recording of testimony of LDC from DDA that it came to light that DDA had re-entered the suit property. No order in that behalf was produced, but a statement was made by the LDC. The testimony was recorded on 04.12.2004 and, thus, it was stated that the amendment application filed in May, 2005 could not be said to be belated. It was also pointed out that the petitioner during his deposition had admitted that the lease had been cancelled, but had denied that any order of re-entry had been passed.

5. The trial court in terms of the impugned order dated 17.09.2005 has allowed the application for amendment of the written statement subject to costs of Rs. 2,000/-. The basis of the impugned order is that the respondent during the examination of the witness of DDA came to know that possession of the suit premises had been taken over from the petitioner and, thus, the lessee ceases to be a landlord. It was further held that the decision on the application of the DDA filed under Order I Rule 10 of the Code could not be construed as res judicata between the present parties and if the respondent is able to establish that DDA had taken over possession of the suit premises from the petitioner after cancellation of the lease, there may be certain consequences.

6. Learned senior counsel for the petitioner contended that the application was mala fide and had been filed at the stage of final hearing of the suit only to defeat the result of the suit as the respondent really did not have any defense. It is only the oral testimony of the LDC from DDA on which the amendment was claimed even though no document had been produced of re-entry or possession being taken over or any eviction order. The witness had also denied any personal knowledge about the case and had claimed that he did not know whether possession of the suit property was still with the petitioner.

7. The grievance of the petitioner is that the respondent is misusing the property with the result that the conversion into freehold of the property is not taking place on that account. It was not the stand of DDA even at the stage of moving of the application for impleadment that any re-entry had taken place.

8. Learned senior counsel for the petitioner also strongly relied upon the observations made in the Order passed by learned Single Judge of this Court in the revision petition on 23.04.2001, which have already been noticed hereinabove. Learned senior counsel contended that in view of the said judgment, the application filed by the respondent for amendment of the written statement was barred by the principles of res judicata. In this behalf, learned senior counsel referred to judgment of the Supreme Court in State of Karnataka and Anr. v. All India Manufacturers Orgn. and Ors. JT 2006 (11) SC 337. In the said case, it was held by the Supreme Court that the main purpose of the doctrine of res judicata is based on the larger public interest. That once a matter has been determined in a former proceeding, it should not be open to parties to re- agitate the matter again and again. Section 11 of the Code recognizes this principle and, thus, forbids a court from trying any suit or issue, which is res judicata. The doctrine of res judicata is founded on two grounds :

(i) being the maxim nemo debet bids vezari pro una et eadem causa (?No one ought to be twice vexed for one an the same cause?); and

(ii) public policy that there ought to be an end to the same litigation (Mulla, Code of Civil Procedure (Vol. 1, 15th edn., 1995) at p. 94.

9. Learned senior counsel for the petitioner also referred to the judgment of the Supreme Court in Ishwar Dutt v. Land Acquisition Collector and Anr. (2005) 7 SCC 190 where it was held that res judicata was applicable even to different stages of same proceedings.

10. Learned senior counsel for the respondent, on the other hand, emphasized that the proceedings before this Court are not in the nature of an appeal or even to correct an error apparent on the face of the record or error of law. In this behalf, the observations of the Supreme Court in Mohd. Yunus v. Mohd Mustaqim and Ors. AIR 1984 SC 38 were relied upon where in para 7 it was observed as under:

7. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is limited to ?seeing that an inferior Court or Tribunal functions within the limits of its authority? and not to correct an error apparent on the face of the record much less an error of law. In this case there was, in our opinion, no error of law much less an error apparent on the face of the record. There was no failure on the part of the learned Subordinate Judge to exercise jurisdiction nor did he act in disregard of principles of natural justice. Nor was the procedure adopted by him not in consonance with the procedure established by law. In exercising the supervisory power under Article 227, the High Court does not act as an Appellate Court or Tribunal. It will not review or reweigh the evidence upon which the determination of the inferior court or tribunal purports to be based or to correct errors of law in the decision.

11. Learned senior counsel for the respondent contended that the trial court had weighed the material before it and had allowed the amendment, which do not call for any interference by this Court in exercise of jurisdiction under Article 227 of the Constitution of India.

12. Learned senior counsel for the respondent referred to the judgment of learned Single Judge of this Court in Sudarshan Khanna v. Krishna Kanta Bhasin, 95 (2002) DLT 584 in respect of the aforesaid aspect.

13. Learned senior counsel for the respondent also submitted that the question of the title of the petitioner being divested was of importance as in that eventuality, the petitioner is not entitled to the relief of possession. In this behalf, learned senior counsel referred to the judgment of the Supreme Court in Vasantkumar Radhakishan Vora (Dead) by his LRs v. Board of Trustees of the Port of Bombay and Anr. (1991) 1 SCC 761.

14. I have given thoughtful consideration to the rival submissions of the learned senior counsel for the parties and I am of the considered view that the impugned order cannot be sustained.

15. It is trite to say that the jurisdiction of this Court in exercise of powers under Article 227 of the Constitution of India is not appellate in nature. There can be no re-appraisal of evidence. However, if there is a patent error or erroneous exercise of jurisdiction, this Court is not powerless to rectify the mistake of the trial court.

16. In my considered view, the most material aspect is that the arrangement between the parties is of a landlord and a tenant. The lease has been determined. The respondent did not hand over possession and, thus, the suit for possession has been filed. The allegation of the petitioner is of misuse of property with the result that even the conversion of the property of the petitioner cannot take place. The net result is that on the one hand the respondent is alleged to be misusing the property, while on the other hand the respondent seeks to take advantage of the action taken by DDA for misuse of the property.

17. DDA attempted to intervene in the present proceedings by filing an application for impleadment, but that attempt was nipped in the bud in view of the judgment of learned Single Judge of this Court in C.R. No. 1185/1997 dated 23.04.2001. The observations made in that judgment by S.K. Mahajan, J. are of utmost relevance and I am in full agreement with the same. It has been rightly observed that the present proceedings are not one of title. The petitioner was undisputedly given the perpetual leasehold rights and the respondent became a tenant under the petitioner. If the perpetual Lesser is aggrieved with the perpetual lessee, there are separate remedies available to the perpetual Lesser. The question of determination of the perpetual lease was, thus, held not to be a question to be gone into in the present proceedings. The respondent filed reply and supported the stand of DDA. The object was obvious to somehow frustrate the suit of the petitioner / landlord seeking possession from the respondent.

18. In my considered view, even if the said judgment does not amount to a constructive res judicata, the observations made in the said judgment are applicable even at the present stage when the respondent seeks to amend the plaint more or less on the same aspect. The respondent is seeking to carve a distinction by claiming that DDA had approached the Court on the basis of cancellation of the lease while the aspect which came to light subsequently was re-entry of the property. It may be noticed that the LDC of DDA did not produce any documents, but only stated that re-entry had taken place. There is no question of any physical possession being taken over, as the respondent itself is a tenant in the suit property. Thus, there is really no special significance to the so-called re-entry. A case cannot be made out as if the possession has been taken over from the petitioner.

19. In my considered view, the very premise on which the trial court granted the amendment is fallacious as it proceeds on the basis as if the physical possession has been taken over by the DDA. In fact, the judgment referred to by learned Counsel for the petitioner before the trial court in Shanti Devi v. Sr. Ganga Pershad 2000 I AD (Delhi) 258 has been discussed by the trial court where the lease had been cancelled and the property had vested in the Central Government, yet it was held that the landlord continues to be so qua the tenant. The only distinction made by the trial court while considering the said judgment is that the DDA had taken over possession of the suit premises. As to how this conclusion is derived really cannot be deciphered.

20. The trial court has taken note of the plea of the petitioner that a mala fide amendment must be disallowed and referred to the judgment of this Court in Vimla Devi and Anr. v. Surinder Kumar 1997 IV AD (Delhi) 420. This mala fide plea has, however, been rejected.

21. In my considered view, if the past proceedings are looked into where the aspect of the scope of the suit vis-vis the perpetual Lesser or determination of the lease already stood decided, there can be no doubt that the plea raised by the respondent at the stage of final hearing was clearly mala fide and an attempt to delay the final adjudication of the suit.

22. Undisputedly, the law in respect to amendment requires the courts to be liberal. In Rajesh Kumar Aggarwal and Ors. v. K.K. Modi and Ors. (2006) 4 SCC 385, it has been observed that the object of Order VI Rule 17 of the Code is that courts should try the merits of the case that come before them and allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. It is, however, observed at the same time that the rule of amendment is essentially a rule of justice, equity and good conscience and an exception to the general liberal view is where a party applying is acting mala fide. In my considered view, it is in this category that the present case will fall. The real question in controversy is only whether the lease has been validly determined by the landlord since the respondent is not a protected tenant under the Delhi Rent Control Act, 1958. The matter is not one of deciding the title or whether the perpetual lease has been rightly determined or any re-entry order passed. Thus, the amendment does not seek to deal with the real question in controversy and that was the reason why attempts on the part of DDA earlier to get itself imp leaded in the suit was rejected. The suit is prolonged for a period of 11 years while all that has to be seen is whether there was a valid determination of tenancy by the landlord vis-vis the tenant.

23. In view of the aforesaid, I am of the considered view that the impugned order dated 17.09.2005 of the learned Additional District Judge cannot be sustained and the application filed by the respondent under Order VI Rule 17 of the Code is liable to be dismissed. Ordered accordingly.

24. The petition is allowed with costs of Rs. 5,000/-.

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