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High Court Of Delhi
BATTU MAL - Appellant
Versus
RAMESHWAR NATH - Respondent
SECOND APPEAL 45 of 1968
Decided On : 05/06/1970
RENT CONTROL - TENANCY - NOTICE - WAIVER - EVICTION - RESIDENCE - Delhi Rent Control Act, 1958 - Section 106 of the Transfer of Property Act, 1882 - Section 14(1) of the Delhi Rent Control Act, 1958 - Whether a notice to determine the contractual tenancy must precede an ejectment application under Section 14 of the Delhi Rent Control Act, 1958 - Whether an objection as to want of notice, if raised by the tenant at the stage of appeal before the Tribunal can be held to have been waived by him for the reasons that no such objection had been taken before the Rent Controller - Whether in order to entitle the landlord to the benefit of clause (h) of the proviso to Section 14(1) of the Delhi Rent Control Act, 1958 the vacant possession of a residence acquired or built by a tenant or allotted to him may be any time after the creation of the tenancy regardless of whether the tenant is in possession of the same at the time of institution of proceedings for his eviction by the landlord.
Fact of the Case:
The tenant challenged the eviction order passed by the Controller and the Rent Control Tribunal under provisos (e) and (h) to Section 14(1) of the Delhi Rent Control Act, 1958, on the grounds that the landlord did not serve a proper notice under Section 106 of the Transfer of Property Act, 1882, that the landlord did not terminate the contractual tenancy by a notice under Section 106 of the Transfer of Property Act, and that the proviso (h) to Section 14(1) of the Delhi Rent Control Act, 1958 was not satisfied.
Finding of the Court:
1. A notice to determine the contractual tenancy is essential before an ejectment application can be filed by a landlord against a tenant under the Rent Control Legislation. 2. The requirement of notice under Section 106 of the Transfer of Property Act is for the benefit of the parties and can be waived by the tenant. 3. The failure of the tenant to raise the objection regarding the non-compliance with Section 106 of the Transfer of Property Act at an early stage of the litigation would amount to a waiver of the plea by him. 4. The vacant possession of a residence acquired or built by a tenant or allotted to him may be any time after the creation of the tenancy regardless of whether the tenant is in possession of the same at the time of institution of proceedings for his eviction by the landlord.
Issues: 1. Whether a notice to determine the contractual tenancy must precede an ejectment application under Section 14 of the Delhi Rent Control Act, 1958? 2. Whether an objection as to want of notice, if raised by the tenant at the stage of appeal before the Tribunal can be held to have been waived by him for the reasons that no such objection had been taken before the Rent Controller? 3. Whether in order to entitle the landlord to the benefit of clause (h) of the proviso to Section 14(1) of the Delhi Rent Control Act, 1958 the vacant possession of a residence acquired or built by a tenant or allotted to him may be any time after the creation of the tenancy regardless of whether the tenant is in possession of the same at the time of institution of proceedings for his eviction by the landlord?
Ratio Decidendi: 1. The provisions of Section 106 of the Transfer of Property Act, 1882 are not repealed or over-ridden by the Rent Control Legislation. 2. The requirement of notice under Section 106 of the Transfer of Property Act is not mandatory and can be waived by the tenant. 3. The failure of the tenant to raise the objection regarding the non-compliance with Section 106 of the Transfer of Property Act at an early stage of the litigation would amount to a waiver of the plea by him. 4. The words "has built, acquired vacant possession of" in proviso (h) to Section 14(1) of the Delhi Rent Control Act, 1958 mean that the tenant must have built or acquired vacant possession of a residence before the filing of the petition for ejectment, but it is not necessary for the tenant to continue to be in possession of the residence at the time of the filing of the petition.
Final Decision: The appeal was dismissed with costs.
( 1 ) THIS is a second appeal under Section 39 (2) of Delhi Rent Control Act, 1958 by the tenant whose eviction has been ordered both by the Controller and the Rent Control Tribunal ander provisos (e) and (h) to Section 14 (1) of the said Act, i. e. because the landlord requires the premises bona fide for his own residence and because the tenant has acquired possession of separate residence for himself.
( 2 ) ORIGINALLY the tenant-appellant attacked the decision of the tribunal in various grounds, namely, that the respondent-landlord was not proved to be the sole owner of the premises, that the respondent-landlord has not been able to prove that the he requires the premises bona fide for his own residence, that the landlord had not terminated the contractual tenancy by a notice given under Section 106 of the Transfer of Property Act, 1882 and, therefore, he could not maintain a petition for eviction under Sectton 14 of the Delhi Rent Control Act, 1958 and lastly that the proviso (h) to Section 14 (1) of the said Act had not been satisfied in as much as the tenant did not continue in vacant possession of a separate residence till the date on which the petition for eviction was instituted by the landlord which petition could not, therefore, be maintained.
( 3 ) THE respondent-landlord urged that the plea regarding alleged non-compliance with Section 106 of the Transfer of Property Act by the landlord could not be taken by the tenant for the first time is second appeal inasmuch as she was deemed to have waived it by his failure to raise it before the Controller. He tried to raise it before the Tribunal by way of an amendment of his written statement but the Tribunal rightly rejected the application for amendment.
( 4 ) THE appeal came up for hearing before Hardy, J. He held that the first two grounds of attack by the appellant-tenant did not involve any substantial question of law but did not involve pure findings of fact. They could not, therefore, be urged in the second appeal under Section 39 (2) of the Act which restricted the scope of the second appeal to a substantial question of law only. The other two contentions of the tenant, namely, whether an application for eviction could not be instituted before the contractual tenancy was terminated by a notice including the counter-plea of the landlord that such a plea cannot be raised for the first time in second appeal and the proper construction of proviso (h) to Section 14 (1) could be said to be substantial questions of law.
( 5 ) THE learned Judge then surveyed the existing case law on these two questions and found that the opinion on the first question was divided and no firm view has yet been expressed by this Court on it. It was necessary, therefore, to refer the first question for consideration to a larger bench. When this was being done the learned Judge thought the second as well might be considered by the larger bench.
( 6 ) BY his order dated 8-1-1970 Hardy, J. therefore, REFERRED TO the following questions of law to this Division Bench for decision :-
1. Whether in the case of a tenancy to which Section 106 of the Transfer of Property Act 1882 applies, an ejectment application under Section 14 of the Delhi Rent Control Act, 1958 can be filed without service of proper notice under Section 106 ? 2. Whether an objection as to want of notice, if raised by the tenant at the stage of appeal before the Tribunal can be held to have been waived by him for the reasons that no such objection had been taken before the Rent Controller? 3. Whether in order to entitle the landlord to the benefit of clause (h) of the proviso to Section 14 (1) of the Delhi Rent Control Act, 1958 the vacant possession of a residence acquired or built by a tenant or allotted to him may be any time after the creation of the tenancy regardless of whether the tenant is in possession of the same at the time of institution of proceedings for his eviction by the landlord ?
( 7 ) QUESTION No. 1 :- T
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