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1972 Supreme(Del) 132
High Court Of Delhi
JAGAN NATH - Appellant
Versus
ABDUL AZIZ - Respondent
Second 149 of 1971
Decided On : 04/28/1972
G.L.Seth, N.D.BALI
A compromise decree can operate as a consent in writing of the landlords to the creation of sub-tenancy under section 16(2) of the Delhi Rent Control Act, 1958, and can estop the landlords from raising the plea of lack of notice under section 17(2) of the Act.
Headnote:
DELHI RENT CONTROL ACT, 1958 - SECTION 16(2), 17(2), 18(1) - SUB-TENANCY - CONSENT OF LANDLORD - NOTICE OF CREATION OF SUB-TENANCY - WAIVER - ESTOPPEL - RES JUDICATA - EXCLUSIVE POSSESSION OF PREMISES - JOINT TENANCY - TENANCY IN COMMON - UNITY OF POSSESSION - EVICTION OF SUB-TENANT.
Fact of the Case:
The landlords and tenants entered into a compromise decree in 1954, wherein the tenants agreed to pay an enhanced rent and the landlords accepted the sub-tenancy of Jagan Nath and another. Later, the landlords obtained an eviction order against the tenants without impleading Jagan Nath. Jagan Nath applied under sections 16 and 18 of the Delhi Rent Control Act, 1958, claiming tenancy rights. The Controller and the Rent Control Tribunal dismissed his application on the grounds that he did not give notice of sub-tenancy within six months of the commencement of the Act and that he failed to prove exclusive possession of the premises.
Finding of the Court:
The court held that the compromise decree of 1954 amounted to a consent in writing of the landlords to the creation of sub-tenancy under section 16(2) of the Act. The landlords were estopped from raising the plea of lack of notice under section 17(2) because they had accepted the sub-tenancy in the compromise decree. The compromise decree also operated as res judicata between the parties. The court further held that Jagan Nath was in joint possession of the whole of the premises with the other sub-tenant and that he was not required to prove exclusive possession.
Issues: 1. Whether the compromise decree of 1954 amounted to a consent in writing of the landlords to the creation of sub-tenancy under section 16(2) of the Act? 2. Whether the landlords were estopped from raising the plea of lack of notice under section 17(2) because they had accepted the sub-tenancy in the compromise decree? 3. Whether the compromise decree operated as res judicata between the parties? 4. Whether Jagan Nath was required to prove exclusive possession of the premises?
Ratio Decidendi: 1. The court held that the compromise decree of 1954 amounted to a consent in writing of the landlords to the creation of sub-tenancy under section 16(2) of the Act because the landlords had accepted the sub-tenancy in the compromise decree and had agreed to an enhanced rent. 2. The court held that the landlords were estopped from raising the plea of lack of notice under section 17(2) because they had accepted the sub-tenancy in the compromise decree and had agreed to an enhanced rent. 3. The court held that the compromise decree operated as res judicata between the parties because it was binding on both the landlords and the tenants and Jagan Nath claimed through the tenants. 4. The court held that Jagan Nath was not required to prove exclusive possession of the premises because he was in joint possession of the whole of the premises with the other sub-tenant.
Final Decision: The court allowed the appeal, set aside the orders of the Controller and the Rent Control Tribunal, and held that the landlords were not entitled to execute the eviction order against Jagan Nath.
( 1 ) AFTER the prayer of the landlords Abdul Aziz and Mohammad Usman (respondents herein) for the eviction of the tenants Gyan Chand and Neb Raj from the premises indispute was disallowed and standard rent was fixed at Rs. 100. 00 per month at the instance of the tenants by the trial Court, Civil Appeal No. 321 of 1954 was filed by the landlords. On 3!st Dec"mber, 1954 the counsel for the tenants stand as follows :-
THE tenants would be paying rent at Rs. 166. 00 per month. The disputed premises were in the occupation of Daulat Ram Dogal Mal and Jagan Nath as sub-tenants and Neb Raj as tenant. The tenants undertook not to bring into the premises any new sub-tenants either in place of the present ones or otherwise. Counsel for the landlords stated that he accepted the above statement of the counsel for the tenants. In view of the above statements, the appellate Court passed a decree in favour of the landlords for Rs. 1650. 00 (at the enhanced rate of rent) in place of a decree for Rs. 1000. 00 which had been passed by the trial Court (at the reduced rate of rent of Rs. 100. 00 per month ). The. tenants were also ordered to pay to the landlords future rent at the higher rate. The Court also recorded that the names of the existing occupants were given by the counsel for the tenants who undertook not to put in any one else in the premises either as tenants or subtenants and that if they were to do so, they would be liable to ejectment.
( 2 ). The landlords, however, again applied for the eviction of the tenants without impleading the sub-tenants who had been accepted as such by the landlords by the compromise of 31st December, 1954 An order of eviction was obtained by the landlords against the tenants only on 31st December, 1963. The landlords then obtained the permission of the Competent A thority under section 19 of the Slum Area (Improvement and Clearance) Act, 1956 to execute the order of eviction again without impleading the sub-tenants. At this stage, Jagan Nath (appellant herein) applied under sections 16 and 18 of the Delhi Rent Control Act, 1958 (hereinafter called the Act) stating that he, who was formerly a lawful sub-tenant under section 16 of the Act, had become a tenant of the premises under section 18 of the Act and that he was not liable to be evicted from the premises in view of the compromise decree of 1954 and because he was not a party to the proceedings taken by the landlords agantst the tenants.
JAGAN Nath s application was dismissed by the Controller and the dismissal was upheld by the Rent Control Tribunal on two grounds, namely:- (1) Assuming that he was a lawful sub-tenant of the premises because of the compromise of 31st December, 1954, he did not become the tenant of the premises under section 18 (1) of the Act because he had not given a notice to the landlords within six month of the commencement of the Act as required by section 17 (2 ). and (2) That he failed to prove that he was in exclusive possession of the whole of the premises.
( 3 ). The question for decision in this second appeal by Jagan Nath centers round the effect on the rights of the parties of the compromise decree of 31st December, 1954. The effect may be considered from three different aspects.
( 4 ). Firstly, under section 16 (2) of the Act, Jagan Nath could not be regarded as a lawful sub-tenant unless the premises were sub-let either in whole or in part to him by the then tenants after obtaining the consent "in writing" of the landlords.
( 5 ). The meaning of the words "in writing" would appear to be the same as the meaning of the word "written" in section 2 (a) of the Arbitration Act which defines an arbitration agreement to mean "a written agreement" etc In construing the latter, the Supreme Court has held that written " does not mean "signed" by the parties. It does not also mean that a formal document was executed by the parties Jugal Kishore Rameshwardas v. Mrs. Goolbai Hormusji and Union of India v. A. L. R
