Pur Polyurethane Products P.Ltd v. Geeta Bhargava

order dated 7.12.2007.

18.

Ex facie, the issue of permitting the appellant to raise a challenge to the title of the respondent does not even arise for consideration because of the events which transpired during the pendency of the suit resulting in the respondent perfecting the title under the title paramount i.e. DSIDC.

19.

We need to speak a few words on the law as to when a tenant or a licensee can question the title of the

landlord or the licensor. Needless to state the rule of estoppel under Section 116 of the Evidence Act does not prohibit the tenant or the licensee to challenge the title of the landlord or the licensor but the same has to be on the pleading that subsequent to the lease/license, the landlord or the licensor as the case may be, has lost title. Additionally, to non-suit the landlord/licensor it has to be proved that the tenant attorned directly to the title paramount or the licensee so attorned to the title paramount. This was so held in the decision reported as 1987 (4) SCC 424 D.Satyanarayana Vs. P.Jagdish.

20.

In the decision reported as 2002 (2) SCC 50 Vashu Deo Vs. Balkishan, the decisions of the Privy Council reported as AIR 1915 PC 96 Bilas Kunwar Vs. Desraj Ranjeet Singh and AIR 1933 PC 29 Currimbhoy & Co. Ltd. Vs. LA Creet were noted and it was held as under:- "As held by the Privy Council in Currimbhoy & Co. Ltd. Vs. L.A. Creet and Bilas Kunwar Vs. Desraj Ranjtit Singh the estoppel continues to operate so long as the tenant has not openly restored possession by surrender to his landlord. It follows that the rule of estoppel ceases to have applicability once the tenant has been evicted. His obligation to restore possession to his landlord is fulfilled either by actually fulfilling the obligation or by proving his landlord's title having been extinguished by his landlord's eviction by a paramount title-holder. Eviction by paramount title-holder is a good defence bringing to an end the obligation of the tenant to put the lessor in possession of the property under Section 108 (q) of the Transfer of Property Act. The burden of proving eviction by title paramount lies on the party who sets up such defence."

21.

It is thus apparent that eviction by paramount title holder is the sine qua non to non-suit the plaintiff who seeks ejectment as a landlord or seeks a mandatory injunction to restore possession as the licensor. It is true that to constitute eviction by a title paramount, physical dispossession is not necessary. But what is necessary is to establish that the title paramount was armed with a legal process for eviction which could not be lawfully resisted. In other words, a voluntary attornment would not enable the tenant to non-suit his landlord.

22.

Their Lordships of the Hon'ble Supreme Court who authored the decision in Vashu Deo's case (supra) penned another decision soon thereafter, reported as 2002 (2) SCC 256 Om Prakash Gupta Vs. Ranbir B.Goyal. The ratio in Vashu Deo's case was explained as culled out in para 10 of the said decision as under:- "To constitute eviction by title paramout so as to discharge the obligation of the tenant to put his lessor into possession of the leased premises three conditions must be satisfied: (i) the party evicting must have a good and present title to the property; (ii) the tenant must have quitted or directly attorned to the paramount title-holder against his will; and (iii) either the landlord must be willing or be a consenting party to such direct attornment by his tenant to the paramount title-holder or there must be an event, such as a change in law or passing of decree by a competent court, which would dispense with the need of consent or willingness on the part of the landlord and so bind him as

would enable the tenant handing over possession or attorning in favour of the paramount title-holder directly; or, in other words, the paramount title-holder must be armed with such legal process for eviction as cannot be lawfully resisted. The burden of raising such a plea and substantiating the same, so as to make out a clear case of eviction by paramount title-holder, lies on the party relying on such defence."

23.

On facts, in Om Prakash Gupta's case (supra) it was held that the tenant failed to establish direct attornment under the landlord.

24.

The facts in Om Prakash Gupta's case (supra) are identical with the facts of the instant case. In said case, Ranbir B.Goyal, the respondent before the Hon'ble Supreme Court i.e. the plaintiff cleared the cloud over his title raised by the title paramount i.e. Haryana Urban Development Authority during pendency of the eviction proceedings against Om Prakash Gupta. The Hon'ble Supreme Court held that merely because at some stage the title of the landlord came under a cloud did not entitle the tenant to resist the eviction. The facts of the case were that the suit premises were constructed by Haryana Urban Development Authority (HUDA for short). The same were allotted to Ranbir B.Goyal on certain terms. Alleging violation thereof and imposing a penalty, proceeding under Section 17 of Haryana Urban Development Authority Act 1977 HUDA sought eviction of Ranbir B.Goyal who prior thereto had let out the premises to Om Prakash Gupta sometimes in

August 1989. On 22.2.1999 the Estate Officer HUDA cancelled the allotment in favour of Ranbir B.Goyal and issued a notice dated 7.4.1999 to Om Prakash Gupta asking him to vacate the subject premises. On 19.5.1999 Om Prakash Gupta requested HUDA to allot the suit premises to him as per rules applicable. Ranbir B.Goyal challenged the eviction order before the Appellate Authority which quashed the same vide order dated

22.6.2000. The said order attained finality resulting in Ranbir B.Goyal clearing the cloud over his title. In view of the aforenoted facts, in para 10 of its decision, Hon'ble Supreme Court observed as under:- "For two reasons we do not think that the defendant-appellant is entitled to any relief and for setting aside of the decree for eviction. Firstly, there is neither any order of resumption and forfeiture within the meaning of Section 17 of the Act passed by HUDA against the respondent nor is there an allotment by HUDA directly in favour of the appellant. In view of the order of the Estate Officer having been set aside by the Appellate Authority under the Act the allotment made by HUDA in favour of the respondent continues to subsist. His title, under which he had inducted the appellant in possession of the suit premises, has not come to an end. The triple test, laid down by this Court in Vashu Deo case is not satisfied. Secondly, the appellant is placing reliance on an event happening after the institution of suit i.e. a subsequent event and a case for taking notice of such subsequent event by court so as to impair the judgment under appeal is not made out."

25.

It is relevant to note that during the pendency of WP(C) No.3916/1990, the appellant was permitted to amend the writ petition vide order dated 28.1.1991 and seek a relief

against DSIDC i.e. to direct DSIDC to directly allot the shed to the appellant. With the dismissal of WP(C) No.3916/1990 vide order dated 3rd July 2006, said relief was declined. Review sought by the appellant of the order dismissing the writ petition was dismissed by the Division Bench on 25.7.2006. Petition seeking Special Leave to Appeal being SLP(C) No.12883/2006 was dismissed on 14.8.2006. The second writ petition filed by the appellant being WP(C)No.12589/2006 seeking relief of DSIDC being directed to allot the shed to the appellant suffered a dismissal on 11.7.2007. Letters Patent Appeal being LPA No.1269/2007 challenging the order dated

11.7.2007 was dismissed on 9.10.2007. The appellant has lost on all legal forums vis-à-vis the claim for direct allotment under DSIDC. The question of it being held that the appellant has attorned under DSIDC does not arise. On the contrary, the respondent has obtained a free-hold tenure in its favour under the conveyance deed executed by DSIDC in its favour on

13.11.2006.

26.

We note that on the issue of mesne profits, no submissions were advanced. The finding of the learned Trial Judge was questioned on the bar of limitation. The said plea is not sustainable for the simple reason, as held by the learned Trial Judge the suit was filed within 12 years when cause of action accrued. It has to be noted that the suit was filed on

22.5.2001. The appellant was inducted as a licensee vide Ex.P-1 on 1.9.1990. In fact the suit was filed within 12 years of the induction of the appellant as a licensee.

27.

We find no merits in appeal.

28.

The same is dismissed with costs.

PRADEEP NANDRAJOG, J.

J.R. MIDHA, J.

December 17, 2008 mm

* IN THE HIGH COURT OF DELHI Judgment reserved on : November 27, 2008 % Judgment delivered on : December 17, 2008 + RFA No. 200/2008 PUR POLYURETHANE PRODUCTS P.LTD. ..... Appellant Through: Mr. Harshad V.Hameed, Adv. versus GEETA BHARGAVA ..... Respondent Through: Mr. Jayant Bhushan, Sr. Adv. with Mr. Buddy Ranganadhan, Mr. Atul Shanker Mathur and Mr. Ajay Bhargava, Advs. CORAM: Hon'ble Mr.Justice Pradeep Nandrajog Hon'ble Mr.Justice J.R. Midha 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether judgment should be reported in Digest? : PRADEEP NANDRAJOG, J. 1. Vide Ex.DW-1/1, on 13.12.1977, Delhi State Industrial Development Corporation (DSIDC for short) allotted under a lease-hold tenure an industrial shed bearing No.22, Okhla Industrial Complex, Phase II, New Delhi to the respondent. On 27.8.1990, vide Ex.DW-1/2, respondent executed a license deed in favour of the appellant permitting the appellant to use the shed except the first floor thereof at a monthly license fee of Rs.19,000/- for a period of 3 years with effect from 1.9.1990. 2. A sum of Rs.1,14,000/- was paid as advance license fee to be recovered @ Rs.4,750/- per month i.e. in 24 months. Another sum of Rs.1,14,000/- was paid as interest free security deposit, to be refunded when the licensed premises was vacated. 3. Two months' license fee thereafter was paid by the appellant who ceased to pay any further license fee because DSIDC issued an eviction order against the respondent on 20.11.1990, Ex.DW-1/5. It was alleged therein that the lease money payable by the respondent to DSIDC had not been paid and that the respondent was liable to be evicted. 4. The appellant faced a threat of eviction. It filed a writ petition registered as W.P.(C) No.3916/90. The order Ex.DW-1/5 was challenged in the writ petition. Vide order dated 10.12.1990, Ex.DW-1/6, while issuing show cause notice in the writ petition, operation of Ex.DW-1/5 was stayed. 5. Respondent challenged the eviction order, Ex.DW- 1/5 by filing an appeal under Section 9 of the Public Premises (Eviction of Unauthorized Occupants) Act 1971 which was allowed vide order dated 15.5.1991, Ex.DW-1/17. The eviction order was set aside. Matter was remanded before the Estate Officer for fresh adjudication. 6. Vide Ex.PW-1/3, on 28.11.2000, respondent called upon the appellant to surrender possession of the entire shed alleging that the appellant had trespassed into the first floor thereof pertaining to which area no license was granted to the appellant. Stating that if appellant treated it to be a tenant, tenancy was determined after 15 days of receipt of the notice and that mesne profits would be payable for unauthorized occupation. Not receiving back the possession, respondent instituted a suit stating that as the licensor it was entitled to recover possession of the licensed area and as the owner of the remaining was entitled to receive possession thereof as possession of the appellant was unauthorized. It was stated that license fee for a period 3 years prior to the filing of the suit in sum of Rs.6,84,000/- was payable. Future mesne profits were claimed at Rs.1,50,000/- per month. 7. Appellant defended the suit by alleging misrepresentation of facts, being the non-disclosure of the eviction order passed against the respondent and the filing of WP(C) No.3916/1990 by the appellant. It was stated that vide Ex.DW-1/31 and Ex.DW-1/32, DSIDC had floated a scheme to regularize the allotment in favour of the sub allottees and that under the scheme, the appellant had deposited Rs.14,22,500/- with DSIDC and that vide order dated 3.9.1993, Ex.DW-1/41, the Division Bench before which W.P.(C) No.3916/90 was pending had permitted the appellant to deposit the amount with DSIDC. It was pleaded that aforenoted facts being not pleaded in the plaint, the suit merited a summary dismissal. It was pleaded that the respondent had lost title to the property and that t