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1976 Supreme(Del) 183
High Court Of Delhi
SARABJIT SINGH - Appellant
Versus
MOHAN SINGH - Respondent
SECOND APPEAL 133 of 1976
Decided On : 12/10/1976
A.K.SEN GUPTA, B.S.Indra, M.N.Pombra, S.K.TIWARI, S.N.CHOPRA, Vijay Kishan
A notice issued by a landlord to a tenant, demanding arrears of rent and terminating the tenancy, does not amount to a waiver of the right to obtain eviction, unless there is a clear intention on the part of the landlord to treat the lease as subsisting or to create a new contract of tenancy.
Headnote:
{'KEYWORD': 'WAIVER OF EVICTION ORDER', 'SUBJECT': 'Delhi Rent Control Act, 1958', 'ACT SECTION LIST': ['Section 14(1)', 'Section 42', 'Section 43']}
Fact of the Case:
The appellant, a tenant, was ordered to be evicted from the premises by the Rent Control Tribunal. The appellant and the respondent, the landlord, compromised the matter, and the appellant was allowed three years to vacate the premises. The appellant failed to vacate the premises after the expiry of the three years, and the respondent filed a fresh petition for eviction. The appellant objected to the execution of the eviction order, claiming that a fresh contract of tenancy had been arrived at between the parties.
Finding of the Court:
The court held that the appellant had ceased to be a tenant within the meaning of the Delhi Rent Control Act, 1958, and that the order for eviction had become final and executable. The court further held that the notice issued by the respondent to the appellant, demanding arrears of rent and terminating the tenancy, did not amount to a waiver of the right to obtain eviction. The court also held that the appellant had failed to prove the existence of a fresh contract of tenancy.
Issues: 1. Whether the appellant was still a tenant of the respondent after the expiry of the three years allowed by the Tribunal? 2. Whether the notice issued by the respondent to the appellant amounted to a waiver of the right to obtain eviction? 3. Whether the appellant had proved the existence of a fresh contract of tenancy?
Ratio Decidendi: 1. The court held that the appellant had ceased to be a tenant within the meaning of the Delhi Rent Control Act, 1958, and that the order for eviction had become final and executable. The court relied on the provisions of Section 14(1), Section 42, and Section 43 of the Act to support its decision. 2. The court held that the notice issued by the respondent to the appellant, demanding arrears of rent and terminating the tenancy, did not amount to a waiver of the right to obtain eviction. The court relied on the principles of waiver and the intention of the parties to support its decision. 3. The court held that the appellant had failed to prove the existence of a fresh contract of tenancy. The court relied on the concurrent findings of fact by the rent control authorities below to support its decision.
Final Decision: The court dismissed the appeal and affirmed the order of the Rent Control Tribunal.
( 1 ) THIS second appeal has been filed under Section 39 of the Delhi Rent Control Act, 59 of 1958 (hereinafter referred to was the Act), by the tenant against the appellate order of the Rent Control Tribunal, dated 7th October, 1976, by which he dismissed the appeal and affirmed the order of the Additional Controller dated 12th May, 1975, dismissing the objections of the appellant against the execution of the order for eviction.
( 2 ) THE material facts of the case lie in a narrow compass. The respondent is the landlord and owner of the property No. C-382, Defence Colony, New Delhi, which had been let out to the appellent on a rent of Rs. 650. 00 per month. On 3rd January, 1968 the respondent filed a petition for eviction of the appellant on the ground of bona fide personal necessity mentioned in clause (e) of the proviso to sub-section (1) of section 14 of the Act. The petition was allowed and the order for eviction of the appellant from the premises in dispute was passed. Against this order, the appellant filed a first appeal before the Tribunal, which came up for hearing before Mr. G. C. Jain. On 25th April, 1970 the parties compromised the matter and the appellant before me withdrew the appeal, while the respondent allowed him three years time to vacate. The Tribunal, therefore, ordered the appeal to be dismissed as withdrawn and the appellant to vacate the premises after the expiry of three years, leaving the parties to bear their own costs. The three years mentiomed in the order expired on 25th April, 1973. As a result of that order, the tenancy rights of the appellant stood legally determined and his eviction had been ordered though he had been allowed to continue in possession under cover of the order for three years.
( 3 ) IT appears that the compromise before the Tribunal did not make any provision for payment of the rent and a large amount of arrears of rent became due from the petitioner for the peried commencing from 28th March, 1969. The respondent landlord gave an un- fortunate notice dated 14th September, 1971 (Ex. JDW 3/1 ). In this notice, the respondent through his counsel not only demanded arrears of rent, but also purported to terminate the tenancy of the appellant with effect from the expiry of the tenancy month in October, 1971. Not getting a response, the respondent instituted a fresh petition for eviction on 22nd December, 1971. This petition was first allowed exparte and then the exparte order was set aside and the petition was contested by the appellant. Eventually, on 28th February, 1975 the Additional Controller dismissed the petition on the ground that no relationship of landlord and tenant subsisted between the parties and the petition was, therefore, not maintainable. It appears that on 27th March, 1972 the respondent also instituted a suit for recovery of arrears of rent which suit is probably still pending.
( 4 ) IN the meantime, the period to vacate the premises allowed by the Tribunal had expired and the respondent on 16th May, 1973 applied for execution of the order for eviction. The main objection was that a fresh contract of tenancy had been arrived at between the parties and also by the issue of a fresh notice (Ex. JDM 3/1) and institution of a fresh petition for eviction, the respondent had waived the right to dispossess the petitioner under the order for eviction, and so the previous order for eviction had become inexecutable. This objection has been dismissed by the Additional Controller by order dated 12th May, 1975 and the appeal against the name has been dismissed by the order impugned in this appeal. The Tribunal on appeal has held that the issue of the fresh notice and filing of the petition did not amount to waiver of the right to obtain eviction. The Tribunal also disbelieved the oral evidence produced on behalf of the appellant and has held that a fresh contract of tenancy had been arrived at between the parties Hence this record appeal. 4a. Mr. A. K. Sen, Senior A
