Full Judgment Text
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CASE NO.:
Appeal (civil) 5761 of 2007
PETITIONER:
M/s Nopany Investments (P) Ltd
RESPONDENT:
Santokh Singh (HUF)
DATE OF JUDGMENT: 10/12/2007
BENCH:
Tarun Chatterjee & P.Sathasivam
JUDGMENT:
J U D G M E N T
CIVIL APPEAL NO 5761 OF 2007
[Arising out of SLP [C] No. 9963 of 2007]
TARUN CHATTERJEE, J.
1. Leave granted.
2. This appeal has been preferred before us, assailing the judgment
and decree dated 19th of April, 2007, passed by the High Court of
Delhi, whereby, the High Court had dismissed the appeal of the
appellant, thereby affirming the judgments of the courts below
decreeing the eviction suit filed at the instance of the respondent
against the appellant.
3. The facts leading to the filing of this appeal may be stated as
follows.
4. On 16th of July, 1980, the appellant entered into a lease with Dr.
Santokh Singh HUF for a period of 4 years, with respect to the
property situated at N-112, Panchsheel Park, New Delhi (for short
"the suit premises"), at a monthly rent of Rs. 3500/-. Accordingly, at
the expiry of the afore said period of 4 years, a notice of eviction
dated 5th of April, 1984 was issued which was followed by filing an
Eviction petition No. 432 of 1984 before the Additional Rent
Controller by Jasraj Singh, claiming himself to be the Karta of Dr.
Santokh Singh HUF. The Additional Rent Controller passed an order
directing the appellant for payment of rent at the rate of Rs. 3500/-.
After coming into force of Section 6A of the Delhi Rent Control Act,
a notice dated 9th of January, 1992 was sent by Jasraj Singh, in the
above capacity, to the appellant for enhancement of rent by 10 percent
and also termination of tenancy of the appellant. In reply to this
notice, the appellant denied the right of the respondent to enhance the
rent. Another notice dated 31st of March 1992 was sent afresh by the
respondent notifying the appellant that the rent stood enhanced by 10
percent while the tenancy stood terminated w.e.f. 16/17th of July,
1992. The aforesaid eviction petition No. 432 of 1984 was withdrawn
on 20th of August, 1992 by Jasraj Singh. Thereafter, a notice dated 3rd
of September, 1992 was sent by Jasraj Singh asking the appellant to
vacate the suit property to which the appellant did not concede and
refused to vacate the same by a reply dated 24th of September, 1992.
On 6th of February, 1993, Dr. Santokh Singh HUF, through Jasraj
Singh, claiming himself to be the Karta of the HUF, instituted a suit
seeking eviction of the appellant from the suit premises. The trial
court decreed the respondent’s suit for possession, against which an
appeal was preferred before the Additional District Judge, Delhi. The
first appellate court dismissed the appeal summarily. Against this
order of the first appellate court, a second appeal, being R.S.A. No.
146 of 2003, was preferred before the High Court of Delhi, which
remanded the matter to the first appellate court for fresh
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consideration. In pursuance of this direction of the High Court, the
first appellate court, after fresh consideration of the matter, affirmed
the judgment passed by the Trial court thereby dismissing the appeal
of the appellant herein. Being aggrieved and dissatisfied with the
order of the first appellate court, the appellant preferred a second
appeal, being R.S.A. No. 209 of 2005, before the High Court of Delhi,
which, however, was also dismissed. It is this decision of the High
Court of Delhi, which is impugned in this appeal and in respect of
which leave has already been granted.
5. The pivotal questions, inter alia, in the facts and circumstances
of this case, which warrant our determination are as follows:
(i) Whether Jasraj Singh could file the suit for eviction, in the
capacity of the Karta of Dr. Santokh Singh HUF, when,
admittedly, an elder member of the aforesaid HUF was
alive ?
(ii) Whether the High Court was right in concluding that the
first appellate court had duly dealt with all the issues
involved and re-appreciated evidence as provided under
O.41 R.31 of the Code of Civil Procedure (in short "the
CPC") ?
(iii) Whether the contractual tenancy between the landlord
and tenant came to an end merely by filing an Eviction
Petition and whether the landlord could seek
enhancement of rent simultaneously or post termination
of tenancy ?
(iv) Whether the landlord could issue a notice under Section
6A of the Delhi Rent Control Act, 1958 (in short "the
Act") for increase of rent without seeking leave of the
rent controller during the pendency of an order under
Section 15 of the Act directing the tenant to deposit rent
on a month to month basis ?
6. We have heard the learned counsel for the parties. As regards
the first issue, as noted hereinabove, the learned senior counsel Mr.
Gupta appearing on behalf of the appellant had questioned the
maintainability of the suit filed at the instance of Jasraj Singh,
claiming himself to be the Karta of Dr. Santokh Singh HUF. The
learned counsel Mr. Gupta strongly argued before us that in view of
the settled principal of law that the junior member in a joint family
cannot deal with the joint family property as Karta so long as the elder
brother is available, the respondent herein, who is admittedly a junior
member of the family, could not have instituted the eviction suit,
claiming himself to be the Karta of the family. In support of this
argument, the learned senior counsel Mr. Gupta has placed reliance on
the decisions of this court in Sunil Kumar and another Vs. Ram
Prakash and others [(1988) 2 SCC 77] and Tribhovan Das Haribhai
Tamboli Vs. Gujarat Revenue Tribunal and others [(1991) 3 SCC
442]. Before we look at the views expressed by the High Court on this
question, it would be pertinent to note the ratios of the two authorities
cited before us. In Sunil Kumar and another Vs. Ram Prakash and
others [supra], this court held as follows: -
"In a Hindu family, the Karta or Manager
occupies a unique position. It is not as if anybody
could become Manager of a joint Hindu family.
As a general rule, the father of a family, if alive,
and in his absence the senior member of the
family, is alone entitled to manage the joint
family property."
From a reading of the aforesaid observation of this court in Sunil
Kumar and another Vs. Ram Prakash and others [supra], we are
unable to accept that a younger brother of a joint hindu family would
not at all be entitled to manage the joint family property as the Karta
of the family. This decision only lays down a general rule that the
father of a family, if alive, and in his absence the senior member of
the family would be entitled to manage the joint family property.
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Apart from that, this decision was rendered on the question whether a
suit for permanent injunction, filed by co-parcerners for restraining
the Karta of a joint hindu family from alienating the joint family
property in pursuance of a sale agreement with a third party, was
maintainable or not. While considering that aspect of the matter, this
court considered as to when could the alienation of joint family
property by the Karta be permitted. Accordingly, it is difficult for us
to agree with Mr. Gupta, learned senior counsel appearing for the
appellant, that the decision in Sunil Kumar and another Vs. Ram
Prakash and others [supra] would be applicable in the present case
which, in our view, does not at all hold that when the elder member of
a joint hindu family is alive, the younger member would not at all be
entitled to act as a manager or Karta of the joint family property.
In Tribhovandas’s case [supra], this court held as follows:
"The managership of the joint family property
goes to a person by birth and is regulated by
seniority and the karta or the manager occupies a
position superior to that of the other members. A
junior member cannot, therefore, deal with the
joint family property as manager so long as the
karta is available except where the karta
relinquishes his right expressly or by necessary
implication or in the absence of the manager in
exceptional and extraordinary circumstances such
as distress or calamity affecting the whole family
and for supporting the family or in the absence of
the father whose whereabouts were not known or
who was away in remote place due to compelling
circumstances and that his return within the
reasonable time was unlikely or not
anticipated."(Emphasis supplied)
From a careful reading of the observation of this court in
Tribhovandas’s case [supra], it would be evident that a younger
member of the joint hindu family can deal with the joint family
property as manager in the following circumstances: -
(i) if the senior member or the Karta is not available;
(ii) where the Karta relinquishes his right expressly or by
necessary implication;
(iii) in the absence of the manager in exceptional and extra
ordinary circumstances such as distress or calamity
affecting the whole family and for supporting the
family;
(iv) in the absence of the father: -
(a) whose whereabouts were not known or
(b) who was away in a remote place due to compelling
circumstances and his return within a reasonable
time was unlikely or not anticipated.
Therefore, in Tribhovandas’s case [supra], it has been made clear that
under the aforesaid circumstances, a junior member of the joint hindu
family can deal with the joint family property as manager or act as the
Karta of the same.
7. From the above observations of this court in the aforesaid two
decisions, we can come to this conclusion that it is usually the Father
of the family, if he is alive, and in his absence the senior member of
the family, who is entitled to manage the joint family property. In
order to satisfy ourselves whether the conditions enumerated in
Tribhovandas’s case [supra] have been satisfied in the present case,
we may note the findings arrived at by the High Court, which are as
follows: -
(i) Jasraj Singh, in his cross examination before the trial court had
explained that his eldest brother Dhuman Raj Singh (supposed to be
the Karta of the HUF) has been living in United Kingdom for a long
time. Therefore, the trial court had rightly presumed that Dhuman Raj
Singh was not in a position to discharge his duties as Karta of the
HUF, due to his absence from the country.
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(ii) The respondent produced the Xerox copy of the power of
attorney given by Dhuman Raj Singh to Jasraj Singh.
(iii) The trial court relied upon the law discussed in the books
namely, "Principles of Hindu Law" by Mulla and Mulla and "Shri
S.V. Gupta on Hindu Law", wherein it has been observed that
ordinarily, the right to act as the Karta of HUF is vested in the senior-
most male member but in his absence, the junior members can also act
as Karta.(Emphasis supplied)
(iv) There was no protest by any member of the joint hindu family
to the filing of the suit by Jasraj Singh claiming himself to be the
Karta of the HUF. There was also no whisper or protest by Dhuman
Raj Singh against the acting of Jasraj Singh as the Karta of the HUF.
It may also be noted that the High Court relied on the decision of this
court in Narendrakumar J. Modi Vs. Commissioner of Income Tax,
Gujarat II, Ahmedabad [(AIR) 1976 SC 1953], wherein it was held
that so long as the members of a family remain undivided, the senior
member of the family is entitled to manage the family
properties\005\005\005and is presumed to be manager until contrary is
shown, but the senior member may give up his right of management,
and a junior member may be appointed manager. Another decision in
Mohinder Prasad Jain Vs. Manohar Lal Jain [2006 II AD (SC)
520], was also relied upon by the High Court wherein it has been held
at paragraph 10 as follows:
"10. A suit filed by a co-owner, thus, is
maintainable in law. It is not necessary for the co-
owner to show before initiating the eviction
proceeding before the Rent Controller that he had
taken option or consent of the other co-owners.
However, in the event, a co-owner objects thereto,
the same may be a relevant fact. In the instant
case, nothing has been brought on record to show
that the co-owners of the respondent had objected
to eviction proceedings initiated by the respondent
herein."
Having relied on the aforesaid decisions of this Court and a catena of
other decisions and the findings arrived at by it, as noted hereinabove,
the High Court rejected the argument of the appellant that Jasraj Singh
could not have acted as the Karta of the family as his elder brother,
namely, Dhuman Raj Singh, being the senior most member of the
HUF, was alive. In view of our discussions made herein earlier and
considering the principles laid down in Tribhovandas’s case [supra]
and Sunil Kumar’s case [supra], we neither find any infirmity nor do
we find any reason to differ with the findings arrived at by the High
Court in the impugned judgment. It is true that in view of the
decisions of this court in Sunil Kumar’s case [supra] and
Tribhovandas’s case [supra], it is only in exceptional circumstances,
as noted herein earlier, that a junior member can act as the Karta of
the family. But we venture to mention here that Dhuman Raj Singh,
the senior member of the HUF, admittedly, has been staying
permanently in the United Kingdom for a long time. In
Tribhovandas’s case [supra] itself, it was held that if the Karta of the
HUF was away in a remote place, (in this case in a foreign country)
and his return within a reasonable time was unlikely, a junior member
could act as the Karta of the family. In the present case, the elder
brother Dhuman Raj Singh, who is permanently staying in United
Kingdom was/is not in a position to handle the joint family property
for which reason he has himself executed a power of attorney in
favour of Jasraj Singh. Furthermore, there has been no protest, either
by Dhuman Raj Singh or by any member of the HUF to the filing of
the suit by Jasraj Singh. That apart, in our view, it would not be open
to the tenant to raise the question of maintainability of the suit at the
instance of Jasraj Singh as we find from the record that Jasraj Singh
has all along been realizing the rent from the tenant and for this
reason, the tenant is now estopped from raising any such question. In
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view of the discussions made herein above, we are, therefore, of the
view that the High Court was fully justified in holding that the suit
was maintainable at the instance of Jasraj Singh, claiming himself to
be the Karta of the HUF.
8. This takes us to the next issue namely, whether the High Court
was right in concluding that the first appellate court had duly dealt
with all the issues involved and re-appreciated the evidence as
provided under O.41 R.31 of the CPC. The learned senior counsel for
the appellant Mr. Gupta sought to argue that the High Court had erred
in holding that the first appellate court had acted in due compliance
with O.41 of the CPC. It may be noted that the High Court, while
concluding as aforesaid, came to the following findings: -
1) The first appellate court has passed a speaking order and it is
apparent that it has applied its mind.
2) The First appellate court had to deal with the arguments which
were advanced before it. It had rightly given the short shrift to all
those arguments which did not inject some coherence.
3) The learned counsel for the appellant had failed to point out the
issues regarding which the First Appellate court had not given its own
conclusion.
4) The learned counsel for the appellant had also failed to show as
to how the authority cited viz., Santosh Hazari Vs. Purushottam
Tiwari (dead) by LRs. [AIR 2001 SC 965] was applicable to the facts
of the case.
9. In our view, it is difficult for us to set aside the findings of the
High Court on the question whether the first appellate court, while
deciding the questions of fact and law, had complied with the
requirements under O.41 of the CPC. We are in agreement with the
findings of the High Court as on a perusal of the judgment of the first
appellate court, it does not appear to us that the findings arrived at by
the first appellate court affirming the judgment of the trial court on
any issue were either very cryptic or based on non-consideration of
the arguments advanced by the parties before it. In support of this
contention, before the High Court, the appellant had relied on a
decision of this court in the case of Santosh Hazari [supra], but in this
appeal, the learned senior counsel for the appellant Mr. Gupta has
strongly relied on a decision of this court in the case of Madhukar &
Ors. Vs. Sangram & Ors. [(2001) 4 SCC 756] and contended that
since the judgment of the first appellate court was cryptic in nature
and the first appellate court had not dealt with the issues involved in
the appeal, the same was liable to be set aside and the matter was
liable to be sent back to the first appellate court for rehearing. We are
unable to accept this contention of the learned senior counsel for the
appellant. Before we consider the findings of the first appellate court
as well as the High Court on this issue, we must keep on record that in
Madhukar & Ors. Vs. Sangram & Ors. [supra], this court had to
reverse the findings of the High Court because the High Court erred in
allowing the plaintiff/respondents first appeal without even
considering the grounds on which the trial court had dismissed the suit
and without discussing the evidence on record. On the same lines, the
decision of this court in Santosh Hazari’s case [supra] was based. In
our view, the aforesaid two decisions of this court are distinguishable
on facts with the present case. A perusal of the judgment of the first
appellate court after remand would clearly indicate that the same was
neither cryptic nor based on non-consideration of the issues involved
in the appeal. Apart from that, it has to be kept in mind that the
decisions of this court in Madhukar & Ors. Vs. Sangram & Ors.
[supra] and Santosh Hazari’s case [supra], were considering the
reversal of the findings of fact of the trial court. In the present case,
the first appellate court had affirmed the findings of the trial court,
which were based on total consideration of the material evidence \026
documentary and oral on record. It is well settled that in the case of
reversal, the first appellate court ought to give some reason for
reversing the findings of the trial court whereas in the case of
affirmation, the first appellate court accepts the reasons and findings
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of the trial court. In any view of the matter, from a perusal of the
judgment of the first appellate court, it is clear that it reflects
conscious application of mind and has recorded the findings supported
by reason on all the issues arising along with the contentions put
forward by the parties. In Santosh Hazari’s case [supra], this court
observed: -
"The task of an appellate court affirming the findings
of the trial court is an easier one. The appellate court
agreeing with the view of the trial court need not
restate the effect of the evidence or reiterate the
reasons given by the trial court; expression of general
agreement with the reasons given by the court,
decision of which is under appeal, would ordinarily
suffice." (Emphasis supplied).
Again, in Madhukar & Ors. Vs. Sangram & Ors. [supra], this court
had to set aside the judgment of the High Court because the first
appellate court was singularly silent as to any discussion, either of the
documentary or the oral evidence. In addition, this court in that
decision was of the view that the findings of the first appellate court
were so cryptic that none of the relevant aspects were noticed. In this
background, this court at paragraph 8 observed as follows: -
"Our careful perusal of the judgment in the first
appeal shows that it hopelessly falls short of
considerations which are expected from the court of
first appeal. We, accordingly set aside the impugned
judgment and decree of the High Court and remand
the first appeal to the High Court for its fresh
disposal in accordance with law."
In view of our discussions made hereinabove, we are, therefore,
unable to agree with the learned senior counsel for the appellant Mr.
Gupta that the High Court was not justified in holding that the
findings of the first appellate court were in compliance with O.41 of
the CPC. That apart, the learned senior counsel for the appellant Mr.
Gupta could not satisfy us or even point out the specific issues which,
in his opinion, had been left to be addressed by the first appellate
court. In view of the discussions made herein above, we are, therefore,
of the view that no ground was made out by the appellant to set aside
the judgment of the High Court on the question whether the judgment
of the first appellate court was liable to be set aside for non-
compliance with the mandatory provisions of O.41 of the CPC.
10. Let us now deal with Issue Nos. 3 and 4. Since both these issues
are interlinked, we shall deal with these two issues together. Let us
first consider whether the respondent landlord could issue a notice
under Section 6A of the Act for increase of rent when the petition for
eviction of the appellant was pending before the Additional Rent
Controller and when there had been an order to the tenant for deposit
of rent on a month to month basis under Section 15 of the Act. In our
view, the first appellate court as well as the High Court were fully
justified in holding that it was open to a landlord to increase the rent
of the suit premises by 10% after giving a notice under section 6A of
the Act. In this connection, it would be appropriate to reproduce
Section 6A of the Act which talks about revision of rent and Section 8
of the Act which contemplates notice of increase of rent. Section 6A
runs as under: -
"6A. Revision of rent - Notwithstanding anything
contained in this Act, the standard rent, or, where no
standard rent is fixed under the provisions of this Act
in respect of any premises, the rent agreed upon
between the landlord and the tenant, may be
increased by ten per cent every three years".
From a bare perusal of this provision under Section 6A of the Act, it is
evident that by this statutory provision, the standard rent and in cases
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where no standard rent is fixed under the Act in respect of any
premises, the rent agreed upon between the landlord and the tenant,
may be increased by 10% every three years. It is, therefore, open to
the landlord under Section 6A of the Act to increase the rent agreed
upon between him and the tenant by 10 % every three years,
irrespective of the fact that an eviction proceeding is pending and an
order under Section 15 of the Act has been passed by the Additional
Rent Controller except that when a land lord wishes to so increase the
rent of any premises, a notice of increase of rent, as provided under
Section 8 of the Act, has to be served on the tenant thereby intimating
the tenant his intention to make the increase. Section 8 of the Act runs
as under: -
"Notice of increase of rent \026 (1) Where a landlord
wishes to increase the rent of any premises, he shall
give the tenant notice of his intention to make the
increase and in so far as such increase is lawful under
this Act, it shall be due and recoverable only in respect
of the period of the tenancy after the expiry of thirty
days from the date on which the notice is given.
(2) Every notice under sub-section (1) shall be in
writing signed by or on behalf of the landlord and given
in the manner provided in section 106 of the Transfer of
Property Act, 1982 (4 of 1882)."
Therefore, if the landlord wishes to increase the rent of any premises
at any time, only a notice expressing his intention to make such
increase is required to be given to the tenant and Section 6A of the
Act, as noted herein earlier, clearly permits the landlord to increase
the rent by 10% every three years. In this view of the matter, after the
completion of three years, it was open to the landlord at any point
even during the pendency of an eviction petition to increase the rent of
the suit premises after giving the prescribed notice to the tenant.
11. At this stage, we may also consider Section 3(c) of the Act,
which bars the application of the Act to the premises whose monthly
rent exceeds Rs. 3500/-. Section 3(c) of the Act runs as under:-
"Act not to apply to certain premises \026 Nothing in
this Act shall apply \026
(a) \005\005\005\005\005\005..
(b) \005\005\005\005\005\005..
(c) to any premises, whether residential or not,
whose monthly rent exceeds three thousand and five
hundred rupees;"
The Delhi Rent Control Act, 1958 was amended by Act No. 52 of
1988, which came into effect from 1st of December, 1988. By this
amendment of the 1958 Act on 1st of December, 1988, Section 3(c)
with other amendments was brought into force. Section 3(c) of the
amended act provides that the provisions of the Act will not apply to
any premises whose monthly rent exceeds Rs. 3500/- from the date of
coming into operation of this act. In D.C. Bhatia and others Vs.
Union of India and another [(1995) 1SCC 104], while considering
the parent act and the amending act, this court held that the objects of
the amending act are quite different from the objects of the parent act.
It observed that one of the objects of the amending act was to
rationalize the rent control law by bringing about a balance between
the interest of landlords and tenants. It was also observed that the
object was not merely to protect the weaker section of the community.
The Rent Act had brought to a halt house-building activity for letting
out. This court also made an observation that many people with
accommodation to spare did not let out the accommodation for the
fear of losing the accommodation. As a result of all these, there was
acute shortage of accommodation which caused hardship to the rich
and the poor alike and that in the background of this experience, the
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amending act of 1988 was passed. In paragraph 28 of the aforesaid
decision in D.C. Bhatia’s case [supra], this court observed as follows:
-
"In order to strike a balance between the interests
of the landlords and also the tenants and for giving
a boost to house-building activity, the legislature
in its wisdom has decided to restrict the protection
of the Rent Act only to those premises for which
rent is payable up to the sum of Rs 3500 per month
and has decided not to extend this statutory
protection to the premises constructed on or after
the date of coming into operation of the Amending
Act for a period of ten years. This is a matter of
legislative policy. The legislature could have
repealed the Rent Act altogether. It can also repeal
it step by step. It has decided to confine the
statutory protection to the existing tenancies whose
monthly rent did not exceed Rs 3500."
Considering the aforesaid reasons which led to the amending act of
1988, it is clear that the legislature intended to strike a balance by
allowing the landlords to evict a tenant, who could pay more than Rs.
3500/- per month, from the tenanted premises.
12. In the present case, after serving a notice under Section 6A read
with Section 8 of the Act, the protection of the tenant under the Act
automatically ceased to exist as the rent of the tenanted premises
exceeded Rs. 3500/- and the bar of Section 3(c) came into play. At the
risk of repetition, since, in the present case, the increase of rent by
10% on the rent agreed upon between the appellant and the
respondent brought the suit premises out of the purview of the Act in
view of Section 3(c) of the Act, it was not necessary to take leave of
the rent controller and the suit, as noted herein above, could be filed
by the landlord under the general law. The landlord was only required
to serve a notice on the tenant expressing his intention to make such
increase. When the eviction petition was pending before the
Additional Rent Controller and the order passed by him under Section
15 of the Act directing the appellant to deposit rent at the rate of Rs.
3500/- was also subsisting, the notice dated 9th of January, 1992 was
sent by the respondent to the appellant intimating him that he wished
to increase the rent by 10 percent. Subsequent to this notice, another
notice dated 31st of March, 1992 was sent by the respondent
intimating the appellant that by virtue of the notice dated 9th of
January, 1992 and in view of Section 6A of the Act, the rent stood
enhanced by 10 percent i.e. from Rs. 3500/- to Rs. 3850/-. It is an
admitted position that the tenancy of the appellant was terminated by
a further notice dated 16/17th of July, 1992. Subsequent to this, the
eviction petition No. 432 of 1984 was withdrawn by the respondent on
20th of August, 1992 and the suit for eviction, out of which the present
appeal has arisen, was filed on 6th of February, 1993. That being the
factual position, it cannot at all be said that the suit could not be filed
without the leave of the Additional Rent Controller when, admittedly,
at the time of filing of the said suit, the eviction petition before the
Additional Rent Controller had already been withdrawn nor can it be
said that the notice of increase of rent and termination of tenancy
could not be given simultaneously, when, in fact, the notice dated
16/17th of July, 1992 was also a notice to quit and the notice intending
increase of rent in terms of Section 6A of the Act was earlier in date
than the notice dated 16/17th of July, 1992. In any view of the matter,
it is well settled that filing of an eviction suit under the general law
itself is a notice to quit on the tenant. Therefore, we have no hesitation
to hold that no notice to quit was necessary under Section 106 of the
Transfer of Property Act in order to enable the respondent to get a
decree of eviction against the appellant. This view has also been
expressed in the decision of this court in V. Dhanapal Chettiar Vs.
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Yesodai Ammal [AIR (1979) SC 1745].
13. Before parting with this judgment, we may deal with a decision
of this court in the case of Ambalal Sarabhai Enterprises Ltd. Vs.
Amrit Lal & Co. and another [(2001) 8 SCC 397] on which the
learned senior counsel for the appellant Mr. Gupta placed strong
reliance. Relying on this decision, Mr. Gupta sought to argue that the
amendment of the Act being not retrospective in operation, in view of
Section 6 of the General Clauses Act, it would not affect the pending
eviction proceeding, which would continue as if the act had not been
amended and therefore, the suit filed by the respondent for eviction
under the general law without taking leave from the Additional Rent
Controller could not be said to be maintainable. In our view, the
decision of this court in Ambalal Sarabhai’s case [supra] does not
support the appellant but it supports the respondent. In that decision,
this court held that the vested right of the landlord under the general
law continues so long it is not abridged by the protective legislation,
namely, the Rent Act, but the moment this protection is withdrawn,
the vested right of the landlord reappears which can be enforced by
him. Such being the position, we are, therefore, of the view that since
the eviction petition filed by the respondent before the Additional
Rent Controller was withdrawn and the tenancy was terminated by a
fresh notice to quit and in view of the increase of rent wished by the
landlord in compliance with Section 6A read with Section 8 of the
Act, there cannot be any difficulty to hold that the suit in fact was
maintainable under the general law. That being the position, the
decision of this court in Ambalal Sarabhai’s case [supra] can not at
all be applicable in favour of the appellant and which, in view of our
discussions made hereinabove, can only be applicable in favour of the
respondent.
14. For the reasons aforesaid, none of the grounds urged by the
learned senior counsel for the appellant Mr. Gupta can be accepted by
us to interfere with the impugned judgment of the High Court.
Accordingly, the appeal fails and is hereby dismissed. However,
considering the facts and circumstances of the case, we grant time to
the appellant to vacate the premises in question by 29th of February,
2008 provided the appellant files an usual undertaking in this regard
in this court within a fortnight from this date. In default, it will be
open to the respondent to proceed to execute the decree for eviction of
the appellant from the suit premises in accordance with law. There
will be no order as to costs.