Ved Parkash vs Darshan Lal Jain

J.V. Gupta, J.—This is a tenant''s petition against whom eviction order has been passed by both the authorities below. The landlord, Ved Parkash, sought the ejectment of his tenant from the shop in dispute bearing No. 6313, Ward No. 3, situate in Jain Bazar, Ambala City, inter alia on the ground that the tenant had made structural alterations in the shop in dispute by removing the wall adjacent to shop No. 6312, and thereby the tenant had committed an act by which he has impaired the value and utility of the shop in dispute.

In the written statement, it was pleaded that Darshan Lal was a tenant of shop No. 6313 and was also the tenant of shop No. 6312, owned by Amrit Lal, who was the brother of the landlord Ved Parkash. However, it was denied that the wall was removed by him, as alleged.

It is the common case of the parties that shop No. 6313 belonging to Darshan Lal was already in occupation with the tenant, Ved Parkash, since 1947, whereas the adjacent shop No. 6312 belonging to Amrit Lal, brother of the landlord was taken on rent vide rent, dated 26th September, 1960, Exhibit A.1 on a monthly rent of Rs. 22/-. According to the landlord, the intervening wall between the two shops was removed by the tenant, whereas according to the tenant, the said wall was removed by the landlord while renting out the premises in the year 1960. The present ejectment application was filed on 6th July, 1976, that is, after 16 years from the alleged removal of the wall. The learned Rent Controller found that the landlord had been able to prove the removal of the intervening wall by the tenant after his taking the shop. Consequently, eviction order was passed. In appeal, the learned Appellate Authority affirmed the said finding of the learned Rent Controller and observed as under:

The circumstances on the record lead to an inevitable conclusion that the wall was removed by the tenant after he has taken the shop in dispute on rent. The mere delay in seeking remedy cannot be viewed against the case of the landlord when there is no legal bar for the same, nor the tenant has raised any plea of acquiescence in his written statement.

Consequently, the eviction order was maintained. Dissatisfied with the same, the tenant has filed this petition in this Court.

The learned Counsel for the Petitioner contended that there is no finding that how the said removal of the wall has impaired the value and the utility of the demised building, and in absence of any such plea and the finding, no eviction order could be passed on that ground. It was further contended that in any case, it is a clear case of acquiescence because the ejectment application was filed after about 16 years from the alleged removal of the intervening wall between the two shops. In support of this contention, he referred to Smt. Narinder Kaur v. Arjan Dass 1981 R. C. R. 194, Messers New Garage Ltd. v. Sardar Khushwant Singh (1951) 53 P. L. R. 136 (D. B.); Dr. Gopal Dass Verma v. S. K. Bhardwaj (1957) 59 P. L. R. 355; Mukesh Chand and Ors. v. Jamboo Parshad and Anr. (1963) 65 P. L. R. 285 (D. B.), Shri Partap Chand v. The Automobile Association of Upper India (1963) 65 P. L. R. 262, which judgment was later on approved by the Supreme Court as well and reported in Partap Chand v. The Automobile Association of Upper India A. I. R. 1964 S. C. 1305.

On the other hand, the learned Counsel for the landlord submitted that the very fact that the wall was removed by the tenant was itself sufficient to show that it has materially impaired the value and the utility of the demised premises. As regards the other contention, it was submitted that no such plea of acquiescence was taken by the tenant and in any case, there is no bar to seek ejectment of the tenant on the grounds available under the statute even after a lapse of time, if any. According to the learned Counsel, the question of acquiescence as such did not arise. In support of his first contention, reference was made to Harbans Sharma v. Smt. Pritam Kaur 1982 (1) R. L. R. 247, and for the later to Sat Paul v. Faqir Chand (1973) 75 P. L. R. (S. N. 3).

After hearing the learned Counsel for the parties and going through the case law cited at the Bar, I am of the opinion that it is a case which should be heard by a larger Bench as the question involved as regards acquiscence is of importance and is likely to arise in other cases. Moreover, there appears to be a conflict in the judgments rendered by this Court. The view taken in Sat Paul''s case (supra) goes contrary to the view taken earlier in Messers New Garage''s case (supra) and other judgments cited on behalf the tenant-Petitioner. It is, therefore, directed that the case be laid before Hon''ble the Acting Chief Justice for passing the necessary orders

JUDGMENT OF THE DIVISION BENCH

D.V. Sehgal, J.

Darshan Lal Jain landlord-Respondent filed an application u/s 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (hereinafter referred to as ''the Act'') for ejectment of Ved Parkash tenant-Petitioner on the alle�gation that shop bearing House-tax No. 6313 Ward No. 3 situated in Jain Bazar, Ambala City, is owned by him and was let out to the Petitioner on a monthly rent of Rs. 22/-, vide rent note dated 26.9.1960, and sought his ejectment, inter alia on the ground that he had made structural alterations in the shop, in dispute, by removing the wall adjacent to shop No. 6312 and thereby committed an act by which the value and utility of shop in dispute had been impaired. The learned Rent Controller, Ambala City, vide his order dated 31.3.1981 held the ground of eviction to have been established and directed eject�ment of the Petitioner from the demised premises. On appeal, the learned Appellate Authority vide order dated 16.4.1982 having concluded that no definite finding had been returned by the Rent Controller whe�ther the tenant had impaired the value and utility of the shop, remitted the matter to the Rent Controller for recording finding on issue No. 1 which was recast as follows:

Whether Ved Parkash, the tenant, has impaired the value and utility of the shop in question ?

The Rent Controller decided issue No. 1 and gave finding to the effect that the tenant-Petitioner had not impaired the value and utility of the shop in question and submitted his report dated 18.2.1983 to the learned Appellate Authority. The learned Appellate Authority, however, did not agree with the report of the Rent Controller and, vide his judgment dated 22nd May, 1984, dismissed the appeal by affirming the finding of the Rent Controller as recorded in the earlier order dated 31.3.1981. Being thus dissatisfied, the tenant-Petitioner filed the present revision petition u/s 15(6) of the Act.

When this revision petition came up for final hearing before J. V. Gupta, J., on 10-12-1984, he was of the opinion that the case ought to be heard by a larger Bench as it involved a question-whether the landlord had waived off the alleged act committed by the tenant in impairing materially the value and utility of the shop by removing the wall and have thus acquiesced in it-which is of importance and likely to arise in other cases It was further found that there is a conflict in the judgments rendered by this Court. The view taken in Sat Paul v. Faqir Chand (1973) 75 P. L. R. (S. N. 3), goes contrary to the view taken earlier in Messers New Garage Ltd. v. Sadar Khushwant Singh (1951) 53 P. L. R. 136 (D. B.). This is how the matter has been placed before us.

We have heard the learned Counsel for the parties. So far as the concurrent finding of the authorities below that it is the tenant-Petitioner who removed the intervening wall between shop No. 6313 and 6312 and thus has impaired materially the value and utility of the demised shop, is concerned, we are of the view that it is based on due and proper appreciation of the evidence and there is no valid ground to interfere with this finding, which is accordingly affirmed.

The learned Counsel for the Petitioner then invited our attention to the statements of AW-1 Budh Ram and AW-2 Ram Kishan, wherein they stated that the wall in question had been removed 8 to 10 years ago. AW-3 Shambhu Nath stated that the wall was removed 9 to 10 years ago. AW-4 Tek Chand deposed that it was removed 18 to 19 years ago. When Darshan Lal Jain landlord-Respondent himself appeared in the witness-box, he stated that the wall had been removed 10 years ago. During the course of his cross-examination, he deposed that it was about 10 years ago during the summer season that he had seen for the first time that the intervening wall had been removed by the Petitioner. He admitted that he did not give any notice to the tenant, nor did he make any report to the police. He further admitted that he had been paying visits to the tenant off and on. In his examination-in-chief he no doubt stated that he had asked the tenant to rebuild the wall, but he did not do so. It is worth noting that besides the aforesaid ground for eviction, the landlord-Respondent in his ejectment application had put forward another ground to the effect that the tenant had failed to make the payment of rent, in respect of the shop in dispute since 1.9.1973 till the date of the application i. e. 22.6.1976. Thus, he contended that since the tenant had not paid the rent since 1.9.1973 in spite of repeated requests and demands, the tenant was liable to ejectment. The rent so claimed was tendered by the tenant by taking resort to the proviso to Section 13(2)(i) of the Act and thus this ground was given up. It is, however, evident that the landlord had been receiving rent from the tenant all along till 1.9.1973. According to his statement, he had seen the wall in question having been removed 10 years earlier to his statement in Court on 3.3.1979. Being fully alive to this fact, he continued receiving the rent from the tenant for a period of more than four years, according to his own admission, instead of seeking his eviction by taking resort to the provisions of Section 13(2)(iii) of the Act. The question, therefore, which inevitably arises is whether the Respondent acquiesced in the aforesaid act of the tenant and is, therefore estopped from taking up this ground for his ejectment at a later stage.

It is to be noted that Section 13(2)(ii) provides that where the tenant has after the commencement of the 1949 Act (the East Punjab Urban Rent Restriction Act, 1949) without the written consent of the landlord transferred his right under the lease or sublet the entire building or rented land or any portion thereof ; or used the building or rented land for a purpose other than that for which it was leased, the landlord can seek eviction of the tenant applying to the Rent Controller. At the same time, Section 13(2)(iii) of the Act lays down that where the tenant has committed or caused to be committed such acts as are likely to impair materially the value and utility of the building or rented land, the landlord can seek his eviction. There is, thus a clear distinction between Clause (ii) and Clause (iii) of Section 13(2) of the Act, in that while in the former the act complained of attracts eviction when it is committed without the written consent of the landlord, no such stipulation is contained in the latter. This aspect places Clause (iii) of Section 13(2) almost at the same footing as Section 9(1)(b)(i) of the Delhi and Ajmer-Merwara Rent Control Act, 1947, which came for consideration before a Division Bench in Messers New Garage Limited''s case (supra). Placing reliance on the position of law explained in Hill and Redman''s Law of Landlord and Tenant, (1946 Edition) 122, it was observed that if the lessor is aware of a continuing breach and acquiesces in it for a long period where, for instance, with full knowledge, he receives rent it will be presumed that he has either released the convenant or granted a licence for the user. The Division Bench also relied on the following observations of Cockburn, C. J. in Griffins v. Tomkins (1880) 42 L. T. 359:

I think it would be monstrous if it were otherwise ; it would amount to this: that the lessor, with a full knowledge that the thing had been done which was prohibited by the lease, and upon which a forfeiture was to accure if it was done, might continue as long as it suited his purpose to receive his rent, and so waive the forfeiture up to the time that rent was received, and then, when it suited his purpose upon a change of circumstance, turn round on the tenant and say, "Although I have allowed you thus by implication to suppose that I was licensing what you were doing, I now take advantage of it and turn you out of what is to you a beneficial lease.

In M/s New Garage Limited''s case (supra) the Division Bench found that the landlords were aware of the alleged breach that had taken place (namely, use of the premises as a workshop instead of its use a show-room, for which according to the landlords premises were let out) and had continued to receive rent without any kind of objection having been raised for a period of at least 6 years, which could lead only to one conclusion and that is that even if there was a breach of the covenant it was waived and the landlords had released the covenant and granted a licence to the user. Reproducing the provisions of Section 9(1)(b)(i) ibid, it was held that the effect of this was that if it is proved that by consent of the landlord any premises had been used for purposes other than for which they were let, a landlord would not have the right of ejectment and the consent may either be express or implied and, therefore, Section 9(1)(b) would be defeated by waiver on the part of the landlord if it was proved that by his previous conduct he had consented to a particular breach of the covenant with regard to user of the premises. It was found that the landlords knew of the breach of the covenant and user and with that knowledge had been receiving rent. It was thus held that the case would not be any different from that what it was in Griffin''s case (supra) and Section 9(1)(b) would not be applicable to the facts of the case. The position of law again reiterated in Dayala alia Dayal Singh and Anr. v. Gian Singh (1958) 60 P. L. R. 354 and Mukesh Chand and Ors. v. Jambao Pershad (1963) 65 P. L. R. 285 (D. B.).

Sat Paul''s case (supra) is clearly distinguishable. In that case, the question of acquiescence as a result of acts on the part of the landlord in accepting the position of the tenant as such in spite of breach of the terms of tenancy coming to his notice, had not come up for consideration. AH that was held was that there is no period of limitation prescribed for the landlord to take advantage of a ground of forfeiture of tenancy in terms of Section 13(2)(ii)(v) of the East Punjab Urban Rent Restriction Act and he could maintain an application for ejectment. The learned Counsel for the Respondent, however, relied on Harbans Sharma v. Smt. Pritam Kaur 1982 (1) R. L. R. 247, wherein the ground involved was almost identical i. e. that the tenant had removed the wall intervening the two rooms under his tenancy. No doubt a contention was raised that the landlord had waived her right and was also estopped by her own act and conduct from raising the plea of impairment of the value and utility of the building. The contention was, however, repelled by holding that on the basis of the facts found, it could not be inferred that the Respondent had condoned the default of the tenant and had agreed not to seek ejectment on its basis. Instead what was shown by the facts was that when the husband of the landlady objected to the removal of the wall, the tenant tried to justify his action through a writing and assured that no such default would be committed in future. Harbans Sharma''s case (supra) is, therefore, again distinguishable.

In a recent judgment by S. S. Kang, J., in Smt. Narinder Kaur and Ors. v. Arjan Dass 1981 R. C. R. 194, the matter again came up for consideration whether the additions and alterations in the demised premises made by the tenant many years before the application for his ejectment on this ground was filed, was an act of the tenant which had been acquiesced in by the landlord, and it was observed that not only a fresh agreement of tenancy had been entered into between the parties but the landlord continued receiving rent from the tenant for another six years subsequent to the alleged act of additions and alterations in the demised premises. It was, therefore, held that this act of the landlord would clearly bar him from raising the plea that the tenant had been guilty of Acts of omission and commission which had taken place much earlier.

We thus find that so far as this Court is concerned, the law laid down by the Division Bench in M/s New Garage Limited''s case (supra) holds good and no view contrary to it can be taken.

The learned Counsel for the Respondent vainly argued before us that the tenant had not taken a specific plea of waiver or acquiescence as regards the alleged act of impairing the value and utility of the shop by removal of the wall in question by him. Therefore, this plea could not be entertained. We are unable to agree with this contention. The categoric admission of the landlord in the witness box makes out a clear case of acquiescence on his part. He having full knoweldge of the fact that the wall in question had been removed by the tenant had been receiving rent from him for more than four years and in fact filed the instant ejectment application nearly eight years from the time he gained the knowledge of the alleged act. The case is, therefore, squarely covered by the ratio of M/s New Garage Limited''s case (supra).

Consequently, we allow this revision petition, set aside the orders dated 31.3.1981 and 22.5.1984 passed by the Rent Controller and the Appellate Authority respectively and dismiss the ejectment application filed by the Respondent-landlord. However, there shall be no order as to costs.

D.S. Tewatia, J.

I agree.