Parkash Nath Vatsa vs Uttam Chand Chadha

H.R. Khanna, J.—This revision petition filed by Parkash Nath Vatsa, Defendant-Petitioner, is directed against the judgment and decree of the learned Additional Senior Sub- Judge, Delhi, whereby he accepted the appeal of Uttam Chand Chadha, Plaintiff-Respondent, and awarded a decree for ejectment from the premises in dispute in favour of the Respondent against the Petitioner.

The brief facts of the present case are that the property in dispute, which was evacuee property, acquired by the Central Government on 1st June, 1955. The rent payable by the Petitioner, who was in occupation of the property, was fixed at Rs. 61/10/- per mensem. The property was sold by public auction and the Respondent gave the highest bid on 14th August, 1955. The sale in favour of the Respondent was confirmed on 27th February, 1956 and the provisional possession of the property was delivered to the Respondent. On 23rd January, 1957 the office of the Custodian of Evacuee Property informed the Petitioner as per letter, Exhibit P. 2, that the sale of the property in dispute in favour of the Respondent had been confirmed. The Petitioner was accordingly directed to pay the rent of the property and deal directly with the Respondent for the period from the date of confirmation i.e., 27th February, 1956. On 25th March, 1957 the Respondent sent notice, Exhibit P. 22, through this lawyer to Petitioner stating that the Respondent had become the owner of the premises in dispute and that the standard rent of the premises was Rs. 125/- per mensem. The Petitioner was stated to have failed to pay the standard rent. The Petitioner was, accordingly, called upon to vacate the premises and pay the entire arrears of rent within one month of the service of the notice. A number of other allegations were made in the notice but we are not now concerned with them. On 6th July, 1957 the Respondent filed the present suit for ejectment of the Petitioner from the premises in dispute. One of the grounds for ejectment was the non-payment of rent. A number of other grounds were also mentioned in the plaint but we are not now concerned with them. The Petitioner in his written statement controverted the allegations of the Respondent and stated that the Respondent was not the owner of the premises in dispute. The Petitioner also filed a writ petition in the High Court claiming that the premises in dispute should have been allotted in his favour and not sold by public auction but the aforesaid writ petition was dismissed by this Court on 9th December, 1958. Sale certificate about the Respondent having become owner of the property in dispute was issued on 21st January, 1959, and it was mentioned therein that the Plaintiff had become owner of the premises in dispute with effect from 27th February, 1956.

The trial court held that the Respondent was the owner and landlord of the premises in dispute but found that he became owner and landlord on 21st January, 1959 and as such he had no right to claim eviction of the Petitioner on 6th July, 1957 when the suit was instituted. The Respondent''s suit was, accordingly, dismissed. On appeal the learned Additional Senior Sub-Judge held that even though the sale certificate was issued in favour of the Respondent on 21st January, 1959, the title in the premises in dispute passed to the Respondent on the date when the sale was confirmed i. e., 27th February, 1956. The Petitioner was found to have failed to pay the arrears of rent inspite of notice of demand. Decree for ejectment from the premises in dispute was, accordingly, awarded in favour of the Respondent against the Petitioner.

Mr. Narula, learned Counsel for the Petitioner, has not challenged the finding of the lower Appellant Court that the Petitioner failed to pay the arrears of rent in accordance with the notice which was served upon the Respondent. He has, however, raised a number of other contentions and I shall deal with them seriatim. It is urged in the first instance that the sale certificate, copy of which is Exhibit P. 18, had not been issued in favour of the Respondent and as such the Respondent has not become the owner of the property in dispute before the filing of the present suit. The suit for ejectment brought on behalf of the Respondent, according to the learned Counsel, was not maintainable. Reliance in this connection is placed upon case Bombay Salt and Chemical Industries Vs. L.J. Johnson and Others, , wherein it was observed that no- transfer of property sold at auction under the Displaced Persons (Compensation and Rehabilitation ) Act, could take place till the sale

certificate had been issued to the highest bidder and the balance of the price had been paid. In the above-mentioned case, the -sale certificate had not been issued in favour of the auction purchaser. It was, however, argued that the sale certificate, when issued, would relate back to the date of auction. Their Lordships did not go into this matter and observed as under:-

Mr. Purshotam Trikamdas contended that the certificate will in any event be granted and that once it is granted, as the form of this certificate shows, the transfer will relate back to the date of the auction. It is enough to say in answer to this contention that assuming it to be right, a point which is by no means obvious and which we do not decide, till it is granted no transfer with effect from any date whatsoever takes place and none has yet been granted." It would appear from the above observations that the question, as to what would be the effect if a sale certificate is issued mentioning that the auction purchaser had become owner with effect from a previous date, was not decided in the above cited authority and as such the Petitioner cannot derive much assistance from it. In the present case letter Exhibit P. 20 dated 27th February, 1956 issued by the office of the Regional Settlement Commissioner shows that the claim of the Respondent was adjusted towards the price of the property in dispute and nothing remained due from him (the Respondent). Sale certificate, copy of which is Exhibit P. 18, was also issued in favour of the Respondent and it was distinctly stated therein that he had become the purchaser of the property in dispute with effect from 27th February, 1956. The effect of the above sale certificate, in my opinion, was that Respondent became owner of the property in dispute from 27th February, 1956. I am fortified in this view by the observations of Khosla C.J. in case Bishan Paul v. Mothu Ram (1961) 63 P.L.R. 470 the head - note of which reads as follows

Held, that title in evacuee property put to auction by a competent officer passes when the sale is confirmed, because it is that date on which the auction purchaser is recognised officially as the owner and is entitled to obtain possession of the property. When a sale certificate is issue d it dates back to the date when the sale was confirmed. Therefore, failure of the tenant to pay rent to the auction purchaser from the date of confirmation renders him liable to ejectment.

A similar view was taken in case Hurkishan Lal v. Bansi Lal (1962) 64 P.L.R. 55 and it was held that once the sale certificate is granted the title of the auction-purchaser dates back to the date of the confirmation of the sale. Bishan Paul v. Mothu Ram (1961) 63 P.L.R. 470, was followed in Harhans Singh v. Sohan Singh and Anr. (1962) 64 P.L.R. 834, by Shamsher Bahadur J.. In the aforesaid case, suit for ejectment had been brought on 17th September, 1958 on grounds of nonpayment of rent and personal residence. The certificate of sale was granted in favour of the Plaintiff on 14th November, 1959 but it was added that the sale was to take effect from 16th April, 1957. It was held that the title in the property passed to the auction-purchaser from the date the sale was confirmed. The Plaintiff''s petition for revision was, accordingly, accepted and a decree tor ejectment was awarded in favour of the Plaintiff.

In view of the above discussion it cannot be said that the Plaintiff-Respondent in the present case was not the owner of the property in dispute on the date he filed the suit. I may also state that after the dismissal of the writ petition of the Petitioner and the issue of sale certificate in favour of the Plaintiff-Respondent, the latter filed an application on 4th August, 1959 in the trial Court complaining about the non-deposit of the arrears of rent with costs by the Defendant-Petitioner. Even after the filing of the aforesaid application, the rent was not deposited by the Petitioner and in his reply dated 28th September, 1959 to that application he stated that he had not deposited the arrears of rent and costs as the Respondent was not the landlord qua the Petitioner.

The next contention of Mr. Narula is that the Respondent mentioned the standard rent of the premises in dispute to be Rs. 125/- per mensem while claiming the arrears of rent in the notice Exhibit P. 22. The notice of demand, according to Mr. Narula, is vitiated by the fact that the amount claimed was much in excess of the amount actually due. In this respect I find that though the notice stated that the standard rent was Rs. 125/-, while making the demand for the arrears of rent the Respondent did not state that the arrears should be paid at that rate. Assuming that the Respondent gave an incorrect figure about the arrears of rent it did not, in my opinion, absolve the Petitioner from paying the arrears of rent which were in fact due from him. Although the scheme of Delhi and Ajmer Rent Control Act of 1952 was to give certain protection to the tenants, the language of Clause (a) of Sub-section (1) of section 13 of that Act clearly goes to show that no indulgence is shown to a tenant who is a defaulter in the payment of rent. While dealing with a somewhat similar provision, a Division Bench of the Allahabad High Court held in Ram Pratap v. Sri Panna Lal 1956 A.L.J. 787, that there was no justification for the tenant to remain silent and not to pay even the amount which, according to him, was due after the notice of demand had been given to him. The relevant head-note in this respect reads as under:-

Clause (a) of Sub-section (1) of Section 3 of the U. P. (Temporary) Control of Rent and Eviction Act lays down three conditions: (1) that the tenant is in arrears of rent for more than three months, (2) that the notice of demand is issued by the landlord, and (3) that the tenant does not pay the arrears within one month of the service of the notice of demand. Clause (a) does not require that the notice of demand shall state the amount due from the tenant A notice of demand may not mention the amount at all. It may simply ask the tenant to pay the arrears which he has not paid for the past three months. If in the notice of demand an amount is mentioned which turns out to be in excess of the amount which is really due from the tenant, this circumstance will not render the notice bad in law within the meaning of Section 3. As soon as a notice of demand is served upon a tenant, it is his duty to pay which amount as he thinks is due from him and if ultimately it is found that the amount paid by the tenant was the correct amount, the landord''s suit for ejectment will be dismissed and the tenant will not suffer (sic)any respect. But there is no justification for the tenant to remain (sic)ent and not pay even the amount which, according to him, is due and ten to claim that the notice was invalid and that he was not liable to ectment.

same view was taken in another Division Bench case Manohar Lal and oner v. Bimal Kumar 1955 A.I.J. 435. Somewhat similar view was taken by the Punjab High Court in Chandra Mukhi and Anr. v. Sham Lal (1953) 55 P.L.R. 7 (S. N.). Mr. Narula has cited Jamna Lal v. Ram Bilas AIR 1950 Ajmer 17(1) and Ram Narayan Vs. Benji, , in which a contrary view was taken, but with due respects I prefer to follow the view expressed in the earlier Punjab case and the two Allahabad cases.

Mr. Narula has next referred to Section 57 of the Delhi Rent Control Act 59 of 1958 and has argued that the present case should be decided in accordance with the provisions of the Delhi Rent Control Act 59 of 1958 and not in accordance with the provisions of the Delhi Rent Control Act 59 of 1958 and not in accordance with those of the Delhi and Ajmer Rent Control Act 38 of 1952. It is urged that in accordance with the provisions of Sub-section (1) of S. 15 of Act 59 of 1958 the trial Court should have made an order directing the Petitioner to pay to the Respondent or deposit with the Court within one month of the date of the order the arrears of rent legally recoverable. In this respect I find that the provisions of Section 57 of Act 59 of 1958 were considered by a Division Bench of this Court in Jhabar Mal Chokhani v. Jinendra Pershad (1963) 55 P.L.R. 469, and it was held as under:-

Sub-section (1) of Section 57 of the Delhi Rent Control Act, 1958, does not demand that the suit for the eviction of a tenant filed under the previous Act of 1952 must be governed entirely by the provisions of the new Act but that, on the other hand, the provisions applicable continue to be the provisions of the old Act with this addition that, where the new Act has slightly modified or clarified the previous provisions, these modifications and clarifications should be applied, but where entirely new rights and new liabilities have been created, the new provisions must not be allowed to override the provisions of the previous Act.

Keeping in view the dictum laid down above, it has to be seen whether the provisions about the making of an order under Sub-section (1) of Section 15 of Act 59 of 1958 constitute slight modification or clarification of the previous law on the subject. In my opinion, the answer to this question can only be in the negative. Sub-section (5) of Section 13 of Act 38 of 1952, which, according to the learned Counsel for the Petitioner, contained the corresponding provision, was substantially different and contemplated an order being made only on the application of the landlord. Sub-section (1) of Section 15 of the Act of 1958, however, makes it imperative for the Rent Controller to make an order contemplated by that section in cases where ejectment is claimed on ground of non-payment of rent, irrespective of the fact whether an application for that purpose is made by the landlord or not. It cannot, therefore, be said that the new provisions are meant only as a clarification of the previous law. The present case, in the circumstances, would be governed by the Act of 1952.

It is next argued that the present case should not be deemed to be a case under the Delhi and Ajmer Rent Control Act of 1952 but one under the proviso to Section 29 of the Displaced Persons (Compensation and Rehabilitation) Act and as such the appeal against the decree of the trial Court could not lie to the Court of the Senior Subordinate Judge because the jurisdictional value of the suit was in excess of Rs. 1000/-. The learned Additional Senior Subordinate Judge, in the circumstances, according to the learned Counsel, could not entertain and accept the appeal of the Plaintiff-Respondent. This contention, in my opinion, is devoid of force. Section 29 of the Displaced Persons (Compensation and Rehabilitation) Act of 1954 grants a protection against eviction within two years from the date of transfer to persons in occupation of property covered by that section, but that section does not create any new type of suits or tribunals nor excludes the application of the general law relating to ejectment prevailing in that locality. I may in this context refer to a Division Bench case of this Court Gobind Ram v. Takhat Mal Kanungo (1932) 64 P.L.R. 969, wherein it was held that the mere fact that some special protection against eviction was provided by Section 29 of the above-mentioned Act does not in any sense imply that such tenants were not within the jurisdiction of the already existing tribunals.

Lastly it is argued that the Plaintiff-Respondent should have determined the tenancy of the Petitioner by giving a notice for ejectment before filing the suit, and as the Respondent did not determine the tenancy of the Petitioner the Respondent had no right to file the suit for ejectment. The question as to whether the tenancy had been determined or not is essentially a question of fact and as no plea on that score was raised in the grounds of revision or pressed in the Courts below I am not prepared to entertain it for the first time at the time of the hearing of the revision.

I may state that in a revision like the present u/s 35 of the Delhi and Ajmer Rent Control Act of 1952, this Court can interfere with the decision of the lower Appellate Court only if it finds that the aforesaid decision is not according to law. The expression ''according to law'' as held by their Lordships of the Supreme Court in Hari Shankar and Ors. v. Rao Girdhari Lal Chowdhury (1962) 64 P.L.R. 1097, is not equated to errors of law or of fact simpliciter but refers to the overall decision which must be according to law and not resulting in miscarriage of justice due to a mistake of law. I have given the matter my consideration and, in my opinion, it cannot be said that the decision of the lower Appellate Court is not according to law. The revision, accordingly, fails and is dismissed. In the circumstances of the case, I leave the parties to bear their own costs of the revision. The Petitioner is given two months'' time to vacate the premises in dispute.