SH AMARNATH THR HIS LRS v. SH D K JAIN THR HIS LRS

1. The present petitions under Article 227 of the Constitution of India have been filed by the petitioner assailing the judgment and order dated 10th 2013:DHC:6590 September, 2009 passed by the Court of learned ADJ-cum-ASJ, Tis Hazari, Delhi in RFA No.18 of 2008.

2. The facts leading to the petition are as under: a) The respondent instituted suits for recovery of rent against the petitioner of `8,480 for the period 1st January 1977 to 31st August, 1979 and of `6,625/- for 1st September, 1979 to 30th September, 1981 in respect of the property bearing Municipal No.III/2179, Tilak Bazar, Delhi- 110006 (hereinafter „suit property‟). The two suits were later consolidated and vide judgment dated 29th April, 1985 the trial court dismissed the suits. b) The respondent then filed an appeal before the learned ADJ who vide judgment dated 19th September, 1992 set aside the order and remanded the suit back to trial court for fresh determination of the controversy between the parties with directions to the respondent to implead the owners of the property as necessary parties to the suit. The respondent filed second appeals against the trial court judgment which was admitted by the Delhi High Court. During the pendency of the second appeals, the respondent purchased the suit property from the owners vide registered sale deed dated 27th August, 2002 and the fact was brought on record of the appellate court. c) The High Court of Delhi vide order on 3rd January, 2006 remanded the appeal back to first appellate court directing it to hear the said appeal afresh without impleading the owners as necessary party. The learned appellate court vide order dated 10th September, 2009 allowed the appeals and set aside the judgment of the Sub-Judge (1) Class in Suit No.461/79 and 361/82. It was also held that the respondent herein are entitled to recover the rent from the defendant therein for the period 1st January, 1977 to 31st July, 1979 and for 1st September, 1979 to 30th September, 1981 @ `265/- pm alongwith interest @6% p.a. from the date of institution of the suit till realization and order of trial court and decreed both the suits holding that the respondent was entitled to recover the rent from the date of institution of the suit till further realisation of the suit.

3. Rule of estoppel emerging from Section 116 of Evidence Act which states that a tenant during the period of tenancy cannot deny the title of the landlord and also relied on Vashu Deo vs. Bal Kishan, 2002 (2) SCC 50 wherein it was held as under: “The plea of eviction by paramount title holder and consequent discharge of obligations of the sub-tenant to put his landlord, i.e. principle tenant into possession of the tenanted premises is only available where three conditions are fulfilled. First, that the party evicting has a valid and legal right to the property. Second, the sub-tenant has vacated the premises or attorned directly to the paramount holder title against his will. Third, the principle tenant landlord either has consented to such attornment or principle title holder has in his favour such legal process for eviction which cannot be lawful resisted as final decree or eviction or an amendment of law.”

4. Admittedly the petitioner and his partners are tenants of the respondent and cannot deny their tenancy status. They were duty bound to tender them the rent and could not in any case bypass them and pay the rent directly to the owners. Admittedly, the petitioner was regularly paying the rent on his behalf to the owners and this included the rent to be paid on behalf of premises in possession of the sub-tenant.

5. The said judgment was challenged by the petitioner before this Court on filing of RSA No.158/2009 which was decided against the petitioner being not maintainable as second appeal by judgment dated 29th August,

2013.

6. No liberty was granted to the petitioner to challenge the judgment passed in two appeals i.e. RCA No.17/2008 and RCA No.18/2008 decided on 10th September, 2009.

7. The petitioner has now after the expiry of more than four years has challenged the judgment by filing of petition under Article 227 of Constitution of India raising the same grounds which were mentioned in RSA i.e. second appeal filed by the petitioner. The judgment in two appeals dated 10th September, 2009 was rendered on the basis of facts involved in the matter.

8. There is no explanation assigned by the petitioner, why the said judgment dated 10th September, 2009 has been challenged after the expiry of more than four years. The petitioner‟s counsel has also failed to explain as to why the RSA i.e. Regular Second Appeal was filed having knowledge that the same was not maintainable in law.

9. For the abovesaid reasons and material available on record, I am of the view that the petitions are liable to be dismissed as there is no merit in the petition.

JUDGE DECEMBER 20, 2013