REVIEW APPLICATION NO. 409/2011 IN
RFA NO. 490/2007 Page 1 of 12
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% REVIEW APPLICATION NO. 409/2011
IN
RFA NO. 490/2007
+ Date of Decision: 16
th
April, 2012
HOLIDAY HOME .....Appellant/Review Petitioner
! Through: Mr.G.L.Rawal, Sr. Adv. with
Mr. Rajesh Rawal, Adv.
Versus
$ R.P. KAPUR HUF .….Respondent
Through:Mr.K.R.Chawla, Advocate
CORAM:
* HON'BLE MR. JUSTICE P.K.BHASIN
ORDER
P.K.BHASIN, J:
This review application has been filed by the unsuccessful
appellant-defendant for reviewing the judgment dated 20
th
December,
2010 whereby the appeal filed by it against the judgment and decree
passed by the trial Court in a suit for possession and mesne profits etc. REVIEW APPLICATION NO. 409/2011 IN
RFA NO. 490/2007 Page 2 of 12
filed against it by the respondent-plaintiff directing its eviction from the
suit property, was dismissed by this Court.
2. The facts which only are relevant for the disposal of this review
application may be noticed first. The respondent-plaintiff (hereinafter to
be referred as ‘the plaintiff’) had filed a suit for recovery of possession,
mesne profits etc. against the review petitioner/appellant/defendant
(‘hereinafter to be referred as ‘the defendant’) inter-alia, in respect of the
suit property on the ground that after the termination of its tenancy it had
no right to remain in possession of the suit property which was let out to
it by the plaintiff in the year 1980. The defendant had contested the suit,
inter-alia, on the grounds that the plaintiff had no locus standi to file the
suit as it was not the owner of the suit property.
3. During the trial, the defendant had examined one official from the
Delhi Development Authority as one of its witnesses and he had deposed
that the lease of the land on which the suit property was built had been
cancelled in the year 1972 and its formal(symbolic) possession was taken
over in the year 1984(as noticed already the suit property was let out to
the defendant by the plaintiff in the year 1980). Relying upon that
statement of its defence witness the defendant had urged before the trial
Court that with the cancellation of the lease of the land by DDA the
plaintiff could not maintain the suit for possession etc. The learned trial
Court dealt with this submission in its judgment in the following
manner:-REVIEW APPLICATION NO. 409/2011 IN
RFA NO. 490/2007 Page 3 of 12
“8.2.……… According to the statement of DW-9 Shri Satya Pal Singh,
LDC, Land & Building (R),Vikas Sadan, Delhi, the lease was
terminated during 1972 followed by appeals or representations in
different forums. Fourthly, the Delhi Development Authority has
cancelled the Lease Deed of the property and there is a re-entry, as
narrated by witness DW-9, therefore, the Delhi Development
Authority being a paramount lessor is owner of the property. Since,
the Delhi Development Authority has cancelled the lease………… the
plaintiff had no authority either to file the present suit or to issue the
alleged notice in the year 1995, as the plaintiff has no locus standi.
………………………
8.4(ii) Since, the defendant has been brought in the premises as
tenant and the defendant was also paying agreed rent to the plaintiff,
therefore, by virtue of cancellation of Lease Deed would not
tantamount to be negating the status of the plaintiff as
landlord………………………………………………………...
…………. The witness DW-9 also narrates that an appeal is also
pending before the Lt. Governor of Delhi in respect of cancellation of
Lease Deed, therefore, the circumstances suggest that Delhi
Development Authority has not possessed the premises physically. The
literal meaning of re-entry, being relied by the defendant is of no
avail…………………….
8(v) In view of my analytical discussion on the point 8.4(i) to (iv),
above, it is vividly clear that the plaintiff has locus standi to file the
present suit……………………….”
4. Finally, the suit came to be decreed in favour of the plaintiff and
the defendant was directed to vacate the suit property. Feeling aggrieved
by the decision of the trial Court, the defendant had filed an appeal before
this Court. During the pendency of the appeal the defendant had filed an
application under Order XLI Rule 27 CPC(being C.M.No. 9422/09)
seeking permission to place on record certain documents which showed
that the Estate Officer had already initiated proceedings under the PublicREVIEW APPLICATION NO. 409/2011 IN
RFA NO. 490/2007 Page 4 of 12
Premises(Eviction of Unauthorized Occupants) Act for the eviction of the
defendant from the suit property as a result of the cancellation of the
lease of the land under the suit property by the Delhi Development
Authority, the paramount lessor. In respect of that application this Court
had recorded the consent of the counsel for the plaintiff on 21.07. 2009
that those documents could be taken into consideration by this Court
while deciding the appeal but without prejudice to its stand that the ongoing proceedings before the Estate Officer had no effect on the
plaintiff’s right to get back the possession of the suit property from the
defendant .
5. Before this Court also Shri G.L.Rawal, the learned senior counsel
for the defendant had mainly pressed into service the point that as a result
of the cancellation of the lease of the land underneath the suit property
the plaintiff was left with no right to seek possession from the defendant.
That plea was, however, rejected by this Court and the appeal was
dismissed vide judgment dated 20
th
December, 2010.
6. Aggrieved by the judgment of dismissal of its appeal, the review
petitioner/appellant filed a Special Leave Petition before the Supreme
Court which was disposed of vide order dated 25
th
April, 2011 which is
re-produced below:-
“This Court has heard the learned counsel for the parties. The
learned counsel for the petitioner seeks permissions to withdraw the
Petition with a view to filing review application before the High
Court. Permission, to withdraw the Petition, as prayed for, is granted.
The Special Leave Petition stands disposed of as withdrawn.”REVIEW APPLICATION NO. 409/2011 IN
RFA NO. 490/2007 Page 5 of 12
7. Thereafter, the present review application was filed by the
defendant wherein it had prayed for the review of the judgment dated 20
th
December, 2010 passed by this Court dismissing its appeal. It was filed
primarily on the ground that even though certain documents were placed
on record by the defendant along with an application under Order XLI
Rule 27 CPC, referred to already, and those documents showed that the
DDA had not only re-entered the suit property but eviction proceedings
against the defendant-appellant had also been initiated by the Estate
Officer under the Public Premises(Eviction of Unauthorized Occupants)
Act, 1971 but still this Court had while dismissing the defendant’s appeal
observed in its judgment that the there was nothing on record to show
that eviction proceedings had been initiated against the plaintiff by the
Estate Officer. Relevant averments in the review application are reproduced below:-
“2 Meanwhile the Estate Officer of Delhi Development Authority
started eviction proceedings against both the parties on the premises
that since lease hold rights of the Respondent has been
cancelled/withdrawn and having lost title as such is not entitled to
hold possession constructively and physically and eviction order is
sought to be passed. Similarly plea was taken against Petitioner/
review Petitioner that they are liable to be dispossessed as,
Respondent has lost lease hold rights from Permanent Lease Holder,
i.e. President of India acting through Delhi Development Authority.
3. Show Cause Notice was issued to both the parties from the office
of Estate Officer of Delhi Development Authority of the said property
in dispute and in response to Show Cause Notice both the parties filed
their respective replies. The review Petitioner took a plea before the
Ld. Estate Officer that they are ready and willing to pay rent to Delhi
Development Authority attorney to the Delhi Development Authority REVIEW APPLICATION NO. 409/2011 IN
RFA NO. 490/2007 Page 6 of 12
as its lessor/landlord and that possession of review Petitioner cannot
be disturbed on this ground also.
4 This Ld. Court was pleased to hear the arguments on various
dates and was concluded on 21
st
July 2009 and by means of Judgment
of 20
th
December 2010 the appeal was dismissed. It is relevant to
mention that during the course of hearing of the said appeal before
this Ld. Court, Respondent also argued to the pendency of the matter
before Estate Officer and the respective replies having filed and even
certain documents were placed on record of this Ld. Court.
5. During the course of hearing the review petitioner through their
counsel also addressed this Ld. Court on this aspect while submitting
therein that eviction proceedings are pending before Estate Officer
and said defence have been taken by Appellant/ review Petitioner and
if that matter had been considered possibly that fate of the appeal
would not have been as held by this Ld. Court.
9. Despite of the aforesaid submissions and even certain
documents were placed on record which still form the part of the
record of the proceedings of eviction before Estate Officer and was
also not disputed during the course of hearing. Whereas this Ld.
Court with utmost respect wrongly may be as per oversight on
account of lapse of time observed in para 14 of the Judgment that
there is nothing on record to show that any eviction proceedings have
been initiated against Plaintiff by Delhi Development Authority or
that any eviction order has been passed against it by the Estate
Officer. Further, it is observed that initiation of eviction proceedings
against defendant/ tenant under PP Act cannot come to the rescue
since it is a eviction of Plaintiff lease by the title. Paramount. With
regard it is submitted that the observation made that no eviction
proceedings have been lodged against Plaintiff against record are or
there is nothing on record to show accordingly are not
correct…………………………………………………….What is the effect
of lodging eviction proceedings against Plaintiff and holding that
there is nothing on record that eviction proceedings are pending
against Plaintiff is error apparent to the face of record and the
findings are contrary not only to the correct position but
material/evidence are available on record whereas the Ld. Court, with
utmost respect, has wrongly observed that there is nothing on record
or true that Delhi Development Authority has initiated proceedings
against Plaintiff. If these facts have correctly been looked into, the REVIEW APPLICATION NO. 409/2011 IN
RFA NO. 490/2007 Page 7 of 12
fate of the appeal would be otherwise. From the submissions as above
said serious error is apparent on the face of the record.”
8. In this regard the learned senior counsel Mr.G.L.Rawal drew my
special attention to the following observations made by me in para no.14
of the judgment:-
“14…………………there is nothing on record to show that actually
any eviction proceedings had been initiated against the plaintiff by
DDA or that any eviction order had been passed against it by the
Estate Officer…………….”
9. Referring to these lines in para 14 of the judgment Mr. Rawal had
vehemently argued that if this Court had taken note of the fact that the
defendant had placed on record all the documents alongwith its
application under Order XLI Rule 27 CPC showing that already eviction
proceedings had been initiated by the Estate Officer and if those
documents had been noticed the fate of the appeal might have been
different.
10. A reply was filed by the counsel for the plaintiff to this review
application wherein it was pleaded that:-
“2) With regard to para 2 of the application it is admitted to the
extent that the Estate Officer of Delhi Development Authority(DDA)
has started eviction proceedings against Shri R.P. Kapur. It is denied
that the leasehold right of the respondent has been withdrawn and
having lost the title as alleged. It is also denied that the respondent is
not entitled to hold possession as alleged. It is denied for want of
knowledge that any Notice has been issued to the Appellant. In the
Notice issued by DDA to the Respondent there is no mention of the
name of the Appellant nor has anybody appeared before the Estate
Officer in the presence of the representatives of the Respondent. It is
submitted that the Appellant if appeared before the Estate Officer is at REVIEW APPLICATION NO. 409/2011 IN
RFA NO. 490/2007 Page 8 of 12
the back of the Respondent or in the absence of the Respondent. The
Appellant has not been given a copy of the alleged reply having being
filed before the Estate Officer by the appellant.
4) With regard to para 4 of the reply so far as it is a matter of
record and needs no reply and the rest of the para is wrong and the
same is denied. This Hon’ble Court has already dealt in detail in the
judgment that even if eviction proceedings are initiated under the
Public Premises (Eviction of Unauthorized Occupants) Act 1971
would not entitle the tenant to resist the Plaintiff/Landlord prayer for
decree of possession after termination of tenancy.
9) With regard to para 9 of the reply it is a matter or record and
needs no reply and the rest of the para is wrong and the same is
denied. However, this Hon’ble Court has rightly observed in the
judgment dated 20
th
December, 2010 that initiation of eviction
proceedings against the Defendant/tenant under Public Premises Act
cannot come to the rescue of the Appellant/Tenant and rest of the para
is absolutely wrong and hence vehemently denied.”
11. In order to find out whether this Court actually committed any
factual error which is apparent on the face of the record, as is the
grievance of the review-petitioner, it would be appropriate to go to those
paras of the judgment sought to be reviewed where the submissions
advanced from both the sides on this aspect of the matter were dealt with.
Those paras are re-produced below:-
“9………………………….The first ground of challenge put in the
forefront by Mr. Rawal, learned senior counsel for the appellant, was
that the perpetual lease in respect of the land underneath the building
which was let out to the defendant having admittedly been cancelled
way back in the year 1972 and the premises re-entered
also(symbolically) in the year 1984, as had been confirmed during
defendant’s evidence by the official from Delhi Development Authority
examined by the defendant as DW-9, the plaintiff could not have been
given a decree of possession in respect of the property which belonged
to the Government. In support of this submission Mr.Rawal drew my
attention to the cross-examination of PW-1 Shri R.P.Kapoor, who REVIEW APPLICATION NO. 409/2011 IN
RFA NO. 490/2007 Page 9 of 12
was the karta of plaintiff, R.P.Kapoor(HUF), and also the defendant’s
landlord, where he had admitted that the lease of the premises in suit
had been cancelled by the DDA on account of misuse. My attention
was also drawn to the evidence of defence witness DW-9, an official
from DDA, who had deposed that the lease of the premises in question
stood cancelled in the year 1972 but later on the Lt. Governor had
restored the same on certain conditions but since the plaintiff had not
fulfilled those conditions the termination of the lease was maintained
by the Lt. Governor and formal possession was taken over by the
Junior Engineer on 13/07/84 and eviction proceedings were ordered
to be initiated by the Estate Officer under the Public
Premises(Eviction of Unauthorised Occupants) Act,1971. Mr. Rawal
contended that even though physical possession of the premises was
not taken over from the plaintiff but for all practical purposes it stood
taken over from the plaintiff and the defendant’s possession became
the possession under the paramount lessor and so the trial Court’s
view that since physical possession had not been taken over by DDA
the plaintiff could get a decree of possession was not legally correct.
It was also contended that the trial Court had placed reliance on some
judgments on the principle of estoppel embodied in Section 116 of the
Evidence Act where the tenanted premises had not been re-entered by
the paramount lessor, as is the position in the present case, and so
those judgments had no application and had been wrongly relied upon
by the trial Court while coming to the conclusion that the defendant
was estopped from challenging the title of the plaintiff because of it
having admitted that it had been let out the premises in dispute by the
plaintiff.………………………..
10. On the other hand, learned counsel for the plaintiff
…………………………………………………………… contended, since
the physical possession of the premises in dispute had not been taken
over by DDA till date the right of the plaintiff as a landlord to seek
possession of the tenanted premises from the tenant does not get
extinguished………………..……………………… ………………….…....
11………………………………………. Mr. Rawal also argued that now
in the year 2007 the Estate Officer had served a notice upon the
defendant-appellant to show cause as to why it should not be evicted
from the premises in dispute being in unauthorized occupation of the
premises belonging to and under the management of the Government
and its copy had been placed on record alongwith an application REVIEW APPLICATION NO. 409/2011 IN
RFA NO. 490/2007 Page 10 of 12
dated 11th July,2009 under Order 41 Rule 27 CPC and the counsel
for the respondent had on 21st July,2009 consented that that
document could be considered by this Court while deciding this
appeal. So, even this development has to be taken note of by this
Court, contended Mr. Rawal, as a subsequent event taking place
during the pendency of this appeal……………………………………….
14. In my view, the mere fact that the Delhi Development Authority
had cancelled the lease in respect of the land underneath the premises
in dispute in the year 1972 because of misuser and had also ordered
initiation of eviction proceedings against the plaintiff-landlord under
the Public Premises(Eviction of Unauthorised Occupants) Act, 1971
in the year 1984 that would not entitle the defendant–tenant to resist
the plaintiff–landlord’s prayer for a decree of possession after
termination of its tenancy since there is nothing on record to show
that actually any eviction proceedings had been initiated against the
plaintiff by DDA or that any eviction order had been passed against it
by the Estate Officer. The initiation of eviction proceedings against
the defendant-tenant under the Public Premises(Eviction of
Unauthorised Occupants) Act in the year 2007 cannot come to its
rescue since it is the eviction of the plaintiff–lessee by the title
paramount i.e. Delhi Development Authority which would have made
the difference as far as the plaintiff’s right to claim possession from
the defendant is concerned. In this regard a useful reference can be
made to a judgment of the Supreme Court in “Vashu Deo vs.
Balkishan” reported as (2002) 2 Supreme Court Cases 50 in which
the facts were that the tenant of the disputed shop had sublet the same
and because of that subletting the landlord, which was a Trust, had
initiated eviction proceedings against the tenant. The tenant had also
initiated separate proceedings against his sub-tenant for eviction on
account of non-payment of rent for some period. The sub-tenant had
attorned directly in favour of the owner-Trust and a direct tenancy
agreement had also been executed between them. The sub-tenant had
resisted the eviction petition filed against him by his landlord on the
ground of his having attorned directly in favour of the superior lessor
i.e. the owner Trust. Accepting that plea, the trial Court dismissed the
eviction petition. However, the High Court held that the sub-tenant
could not have directly attorned in favour of the Trust and eviction of
the tenant was ordered. The sub-tenant then approached the Supreme
Court but his appeal was dismissed and it was observed that mere
institution of a suit for eviction by the Trust against its tenant will not REVIEW APPLICATION NO. 409/2011 IN
RFA NO. 490/2007 Page 11 of 12
amount to eviction of the tenant by title paramount and that the
relationship between the Trust and its tenant would not come to an
end unless and until the eviction case filed by the Trust was decreed
and that decree had attained finality. In the present case, as noticed
already, there is nothing on record to show that DDA had initiated
any proceedings for eviction of the plaintiff under the provisions of the
Public Premises(Eviction of Unauthorised Occupants) Act and so
there is no question of eviction of the plaintiff by title paramount.
Consequently, the defendant was estopped from contending that after
creation of the tenancy with the plaintiff its title to the premises in
dispute had extinguished because of its eviction by title
paramount………....................................... I am, therefore, of the view
that the learned trial Court had rightly rejected the plea of the
defendant that the suit for possession was not maintainable because of
the cancellation of the lease in respect of the land underneath the
premises in dispute in favour of the plaintiff by DDA.”
12. After giving my thoughtful consideration to rival submissions I
find no merits in this review application as there is no error apparent on
the face of record. The crux of the discussion leading to the dismissal of
the appeal was that since no eviction order has been passed in the
proceedings initiated by the Estate Officer, much less the same attaining
finality, the plaintiff’s right to claim possession of its property from the
defendant had not extinguished in view of the legal position laid down by
the Hon'ble Supreme Court in Vashu Deo’s case (supra). Since,
admittedly no eviction order has been passed in respect of the suit
property by the Estate Officer the observation made by me in para 14 of
judgment dated 20
th
December, 2010, which according to the
defendant/review petitioner constitutes an error apparent on the face of
record really does not amount to an error apparent on the face of record
justifying review of the judgment date 20.12. 2010. REVIEW APPLICATION NO. 409/2011 IN
RFA NO. 490/2007 Page 12 of 12
13. I, therefore, dismiss this review petition.
P.K. BHASIN,J
April 16, 2012
