Tag: 1995

Service of Notice in Suit for Eviction – held 106 TPA automatically complied.

May 31st, 2012
Comment : This case takes a very pragmatic view of requirment of service of 15 days notice before filing a suit for recovery of possession after termination of month to month tenancy, it says that even if the tenant pleads non service of notice – if otherwise landlord – tenant relationship is accepted, the service of notice in suit for eviction can be taken to be such notice enough under the court’s power to take note of subsequent facts u/o 7 R 7 CPC.

The Court also drew analogy to suit for dissolution of partnership/partition – in which the mere service of notice has the legal effect to effect a severance.

Delhi High Court

M/S. Jeevan Diesels & Electricals … vs M/S. Jasbir Singh Chadha (Huf) & … on 25 March, 2011

* IN THE HIGH COURT OF DELHI AT NEW DELHI + RFA No.179/2011

% 25th March, 2011 M/S. JEEVAN DIESELS & ELECTRICALS LTD. …… Appellant Through: Mr. Shiv K. Suri, Advocate with Mr.

Danish Hasanian, Advocate.

VERSUS

M/S. JASBIR SINGH CHADHA (HUF) & ANR. …… Respondents Through: Mr. Deo Prakash Sharma, Advocate

with Mr. Umesh Gupta, Advocate.

CORAM:

HON’BLE MR. JUSTICE VALMIKI J.MEHTA

1. Whether the Reporters of local papers may be

allowed to see the judgment?

2. To be referred to the Reporter or not? Yes

3. Whether the judgment should be reported in the Digest? Yes VALMIKI J. MEHTA, J (ORAL)

Caveat No.259/2011 in RFA No.179/2011

Counsel for the caveator appears and thus the caveat stands discharged.

C.M. Nos.6161/2011 and 6162/2011(Exemption) in RFA No.179/2011

Exemption allowed subject to just exceptions.

Application stands disposed of.

RFA No.179/2011

1. The challenge by means of this Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) is to the impugned judgment and decree dated 14.12.2010 which has decreed RFA No.179/2011 Page 1 of 11 the suit of the respondents/plaintiffs for possession of the suit premises against the appellant who was a tenant. The facts of the case are that the premises being flat No.205 (2nd floor), Arunachal Building, 19, Barakambha Road, New Delhi, was let out to the appellant/defendant vide an unregistered lease deed dated 7.7.2003 at a monthly rent of Rs.23,200/- for a period of three years from 7.7.2003. The tenancy of the appellant/defendant was terminated vide notice dated 15.7.2006 and whereafter the suit was filed on 24.7.2007 for possession of the suit premises and for mesne profits.

2. This case has a slightly chequered history inasmuch as earlier the suit for possession was decreed under Order 12 Rule 6 CPC, however, the Hon’ble Supreme Court vide its judgment dated 7.5.2010 remanded the case back to the trial Court on the ground that there were no admissions and therefore the suit required trial.

3. The case was thereafter fixed in the trial Court after the judgment of the Supreme Court dated 7.5.2010 and though the respondents/plaintiffs led evidence, the appellant/defendant did not lead evidence in spite of opportunities given and consequently its right to lead evidence was closed. The impugned has judgment thereafter been passed by the trial Court.

4. A reading of the facts of the present case shows that there is no dispute as regards there having existed a relationship of landlord and tenant between the parties and that the rent was more than Rs.3,500/- per month, taking the premises outside the protection of RFA No.179/2011 Page 2 of 11 Delhi Rent Control Act, 1958. Before the trial Court basically two main arguments were raised on behalf of the appellant/defendant/tenant. The first argument was based upon Clause 6 of the unregistered lease deed dated 7.7.2003 on a stamp paper of Rs.100/- which reads as under:-

“Clause 6 That although the Lease has been created for a period of 3 years yet the monthly rent payable by the Lessees to the Lessors shall stand increased by 20% (Twenty percent only) of the original rent with intervals of each period of three years after the expiry of the initial period of three years.”

On the basis of the aforesaid clause, it was contended that the appellant had a continued right as a perpetual tenant in the premises once rent was increased by 20% every three years. The second argument before the trial Court was that the notice of termination of tenancy dated 15.7.2006 was not validly served and therefore the tenancy was not validly terminated.

5. Learned counsel for the appellant has raised not only the same two arguments which were raised before the trial Court but has also argued a third point that the tenancy was renewed because enhanced rent was received by the respondents after the termination of the tenancy.

6. So far as the argument based upon Clause 6 of the lease deed is concerned, in my opinion, the argument is without substance as the lease document relied upon is an unregistered lease deed and which cannot create a lease for a fixed period unless the lease deed was duly registered. Unless and until a lease for fresh periods is in fact RFA No.179/2011 Page 3 of 11 duly entered into in terms of Clause 6 of the lease deed dated 7.7.2003, the appellant would remain a tenant only from month to month. In law, either there is a tenancy for a specific period in terms of a duly registered lease deed, and in which case the tenant would have protection for the period of lease or if there is no registered lease deed for the leased premises then the tenancy will be on a month to month basis. In the present case, there being no registered lease deed, even originally, or for further periods, the tenancy had always been a month to month tenancy which could be terminated by a notice under Section 106 of the Transfer of Property Act, 1882. Mere existence of Clause 6 would not automatically mean that there is an automatic creation of a registered lease deed for regular fresh periods of three years. This argument of the appellant is therefore rejected.

7. The second argument that the legal notice dated 15.7.2006 was not received by the appellant, and consequently the tenancy cannot be said to have been validly terminated, is also an argument without substance and there are many reasons for rejecting this argument. These reasons are as follows:-

(i) The respondents/plaintiffs appeared in the trial Court and exhibited the notice terminating tenancy dated 15.7.2006 as Ex.PW1/3 and with respect to which the registered receipt, UPC and AD card were exhibited as Ex.PW1/4 to Ex.PW1/6. The notice admittedly was sent to the correct address and which aspect was not disputed before the trial Court. Once the respondents/plaintiffs led evidence and duly RFA No.179/2011 Page 4 of 11 proved the service of legal notice, the appellant/defendant was bound to lead rebuttal evidence to show that the notice was not served although the same was posted to the correct address. Admittedly, the appellant/defendant led no evidence in the trial Court. In fact, even leading of evidence in rebuttal by the appellant would not have ordinarily helped the appellant as the notice was sent to the correct address. In my opinion, therefore, the trial Court was justified in arriving at a finding that the legal notice dated 15.7.2006 was duly served upon the appellant resulting in termination of the tenancy. (ii) The Supreme Court in the case of Nopany Investments (P)Ltd. Vs.Santokh Singh (HUF) 2008 (2) SCC 728 has held that the tenancy would stand terminated under general law on filing of a suit for eviction. Accordingly, in view of the decision in the case of Nopany (supra) I hold that even assuming the notice terminating tenancy was not served upon the appellant (though it has been served and as held by me above) the tenancy would stand terminated on filing of the subject suit against the appellant/defendant. (iii) In the suits for rendition of accounts of a dissolved partnership at will and partition of HUF property, ordinarily it is required that a notice be given of dissolving the partnership at will or for severing the joint status before the filing of such suits because such suits proceed on the basis that the partnership is already dissolved or the joint status of an HUF stands severed by service of notices prior to the filing of such suits. However, it has been held in various judicial RFA No.179/2011 Page 5 of 11 pronouncements that the service of summons in the suit will be taken as the receipt of notice of the dissolution of the partnership or severing of the joint status in case of non service of appropriate notices and therefore the suits for dissolution of partnership and partition of HUF property cannot be dismissed on the technical ground that the partnership was not dissolved before filing of the suit or the joint status was not severed before filing a suit for partition of the HUF property by serving of appropriate notices. In my opinion, similar logic can be applied in suits for possession filed by landlords against the tenants where the tenancy is a monthly tenancy and which tenancy can be terminated by means of a notice under Section 106 of the Transfer of Property Act. Once we take the service of plaint in the suit to the appellant/defendant as a notice terminating tenancy, the provision of Order 7 Rule 7 CPC can then be applied to take notice of subsequent facts and hold that the tenancy will stand terminated after 15 days of receipt of service of summons and the suit plaint. This rationale ought to apply because after all the only object of giving a notice under Section 106 is to give 15 days to the tenant to make alternative arrangements. In my opinion, therefore, the argument that the tenancy has not been validly terminated, and the suit could not have been filed, fails for this reason also. In this regard, I am keeping in view the amendment brought about to Section 106 of the Transfer of Property Act by Act 3 of 2003 and as per which Amendment no objection with regard to termination of tenancy is permitted on the ground that the RFA No.179/2011 Page 6 of 11 legal notice did not validly terminate the tenancy by a notice ending with the expiry of the tenancy month, as long as a period of 15 days was otherwise given to the tenant to vacate the property. The intention of Legislature is therefore clear that technical objections should not be permitted to defeat substantial justice and the suit for possession of tenanted premises once the tenant has a period of 15 days for vacating the tenanted premises.

(iv) Another reason for rejecting the argument that the tenancy would not be terminated by the legal notice Ex.PW1/3 is that the respondents/plaintiffs admittedly filed a copy of this notice alongwith the suit way back in the year 2007. Once the summons in the suit alongwith documents were served upon the appellant/tenant, the appellant/tenant would obviously have received such notice. Even if we take this date when the appellant/tenant received a copy of the notice when served with the documents in the suit, once again, the period of 15 days has expired thereafter and keeping the legislative intendment of amended Section 106 in view, the appellant therefore cannot argue that the tenancy is not terminated and he did not get a period of 15 days to vacate the premises. I am in view of this position consequently entitled to take notice of subsequent events under Order 7 Rule 7 CPC, and taking notice of the subsequent events of the expiry of 15 days after receipt of a copy of the notice alongwith documents in the suit, I hold that the tenancy has been validly terminated, and as on date, the appellant/tenant has no right to stay in the premises and RFA No.179/2011 Page 7 of 11 consequently the decree for possession was rightly passed by the trial Court.

8. Therefore, looking at it from any point i.e. the fact that legal notice terminating tenancy was in fact served, the suit plaint itself can be taken as a notice terminating tenancy or that the copy of the notice alongwith documents was duly served to the appellant/tenant way back in the year 2007, I hold that the tenancy of the appellant/tenant stands terminated and the appellant/tenant is liable to hand over possession of the tenanted premises.

9. Learned counsel for the appellant in desperation sought to argue that the respondents accepted rent after termination of tenancy and therefore a fresh tenancy came into existence. It is alleged that in fact enhanced rent was paid to the respondents/plaintiffs. This aspect is very strenuously denied by the learned counsel for the respondents/plaintiffs who states that his client never accepted the enhanced rent and in fact the alleged enhanced rent was not even tendered to the respondents/plaintiffs. In my opinion, I need not at all go into this aspect because the parties are confined in an appeal to the record of the Court below. In the impugned judgment, I do not find that any such argument was raised by the appellant that a fresh tenancy came into being after termination of the tenancy inasmuch as the appellant had paid enhanced rent to the respondents. If in the opinion of the appellant although this point was taken up in the pleadings and was so argued before the trial Court, and the trial Court did not RFA No.179/2011 Page 8 of 11 deal with the same, then, the only way in which the matter could have been approached was to move the trial Court immediately once the impugned judgment was pronounced and when the matter was fresh in the mind of the Judge praying that this point of creation of fresh tenancy was argued before the Court but not adjudicated upon. This was incumbent upon the appellant/defendant in view of the decision of the Supreme Court in the case of State of Maharashtra Vs. Ramdas Srinivas Naik AIR (1982) 2 SCC 463 in which it has been held that a party cannot be allowed to file an affidavit to challenge the factual contents of a Court record and the only way in which the factual aspect wrongly recorded can be corrected is by moving the same Court which has recorded wrong facts at the earliest possible and if it is not so done then the record of the trial Court becomes final. In the present case, therefore in accordance with the decision of the Supreme Court in the case of Ramdas Srinivas Naik (supra) if the appellant had argued this point and the trial Court had not dealt with the same, the appellant ought to have filed immediately an application either for review or any other application to bring this on record before the trial Court. The appellant not having done so, the matter cannot be allowed to be raised before this Court. I may note that the Supreme Court has reiterated the ratio of the decision in the case of Ramdas Srinivas Naik (supra) in at least 10 to 12 reported judgments thereafter. The argument of the appellant now raised in this Court is also further liable to be not considered because a reading of the grounds of the appeal RFA No.179/2011 Page 9 of 11 also shows that no ground at all to this effect has been raised that a fresh tenancy came into existence on payment of enhanced rent. Learned counsel for the respondents/plaintiffs also states that the list of dates filed by the appellant, in this Court also does not mention this aspect. Quite clearly therefore this third argument raised by the appellant is mala fide, mischievous and an abuse of the process of law. I must also note that the Supreme Court in the case of Sarup Singh Vs. S. Jagdish, 2006 (4) SCC 205 has held that receipt of rent after termination of tenancy can be taken as charges towards use and occupation because after all a tenant is bound to pay charges till he vacates the tenanted premises. Finally, I must add that after all the appellant has not led any evidence in the trial Court and assuming the case was pleaded of creation of a fresh tenancy by acceptance of higher rent, the appellant had necessarily to lead evidence to prove this aspect and which it did not. I thus fail to understand as to how this argument can at all be raised.

10. In view of the above, I find the appeal to be wholly without merit and an abuse of the process of law. In fact, the appeal is nothing but a link in the chain of actions for continued illegal possession of the suit premises on the part of the appellant. Being a commercial litigation, in accordance with para 37 of the decision of the Division Bench judgment of three Judges of the Supreme Court in the case of Salem Advocate Bar Association Vs. Union of India (2005) 6 SCC 344 I find that the present is a fit case where actual costs must RFA No.179/2011 Page 10 of 11 be imposed upon the appellant and in favour of the respondents. I quantify the costs in this case at Rs.25,000/- in favour of the respondents and against the appellant, which shall be paid in two weeks. Appeal is therefore dismissed accordingly.

March 25, 2011 VALMIKI J. MEHTA, J. Ne

RFA No.179/2011 Page 11 of 11
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Violating undertaking given in Mutual Consent Agreement in First Motion and then backtracking amounts to civil contempt.

May 19th, 2012
Violating undertaking given in Mutual Consent Agreement in First Motion and then backtracking amounts to civil contempt.

Delhi High Court

Avneesh Sood vs Tithi Sood on 30 April, 2012

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment reserved on: 09.02.2012

% Judgment delivered on: 30.04.2012 + CONT.CAS (C) 559/2011 & C.M.1932/2012

AVNEESH SOOD ….. Petitioner Through: Mr. Harish Malhotra, Senior

Advocate with Ms. Malini Sud,

Ms.Vidhi Goel and Ms. Bhumika

Menon, Advocates.

versus

TITHI SOOD ….. Respondent Through: Ms. Malvika Rajkotia with Ms.Arpita

Rai, Advocates.

CORAM:

HON’BLE MR. JUSTICE VIPIN SANGHI

JUDGMENT

VIPIN SANGHI, J.

1. The present contempt petition has been filed under Sections 2, 10 and 12 of the Contempt of Courts Act, 1971 by the petitioner to take action against the respondent for withdrawing from her undertaking given to the Court, at the time of filing of the petition for mutual divorce, in the matrimonial Court on 14.09.2010.

2. The petitioner, Avneesh Sood and the respondent, Tithi Sood are husband and wife respectively. Their marriage was solemnized on CONT.CAS (C) 559/2011 Page 1 of 34 08.11.2001 according to Hindu rites and ceremonies. Out of the wedlock one daughter, Aisheeya, was born on 23.12.2002, who is studying in Step by Step World School, Noida.

3. The petitioner submits that after sometime of the marriage, serious differences arose between the parties. The parties negotiated between themselves and with the intervention of the family friends, both arrived at a Memorandum of Understanding (MOU) on 27.08.2010. They agreed to seek divorce by mutual consent.

4. It was also agreed between the parties that the petitioner will pay a lumpsum amount of Rs. Seven crores to the respondent, as a one-time settlement in lieu of all the claims of respondent towards maintenance, alimony, istridhan, jewellery etc. The petitioner agreed to pay Rupees One Crore Fifty Lakhs at the time of filing of the divorce petition to seek divorce by mutual consent, i.e. at the first motion, and the balance amount was to be paid at the time of filing of the second motion. The respondent also agreed to make a statement before the Court in support of the divorce petition. It was also agreed that the respondent will vacate the matrimonial home within a period of sixty days of the first motion going through.

5. As per the MOU, the parties agreed that the custody of the child Aisheeya will be with the petitioner exclusively, and he will take care of CONT.CAS (C) 559/2011 Page 2 of 34 day to day needs of the child. Respondent was entitled to visit the child and also to take her for outings, including sleepover and to spend time with her, if the child agrees to it.

6. Consequently, In pursuance of this MOU, a joint petition for dissolution of marriage by mutual consent (under section 13-B(1) of Hindu Marriage Act) was filed by both the parties, incorporating the terms of settlement arrived between the parties, as contained in the MOU. The statements of both the parties were recorded by the matrimonial Court on 14.09.2010. Both the petitioner and the respondent reiterated the terms of settlement arrived between them and also undertook to abide by them. The Court, acting on the statements of the parties, accepted the first motion petition of the parties. The Court also directed both the parties to remain bound with the terms and conditions agreed upon between them.

7. The petitioner paid an amount of Rupees One Crore Fifty Lakhs, as agreed, to the respondent. The respondent vacated the matrimonial home, 35 Golf Links, on 04.11.2010 with all her belongings and handed over the possession to the petitioner.

8. Since there is a mandatory requirement of cooling off period of six months before which second motion petition cannot be filed, and the first motion petition was accepted on 14.09.2010, the second CONT.CAS (C) 559/2011 Page 3 of 34 motion petition could have been filed only after 14.03.2011. The petitioner submits that the draft divorce petition for moving the second motion was sent to the respondent.

9. The petitioner is aggrieved by the fact that even after the passage of more than four months after 14.03.2011, the respondent has not signed the second motion petition and is not coming forward to make a statement before the matrimonial Court in the second motion to obtain a divorce.

10. Notice was issued in this petition and a chamber meeting was held between the parties, as well as with the child separately, on 15.12.2011. The parties broadly agreed in the meeting in relation to grant of visitation rights to the respondent. Both the parties also agreed that they will take further steps in their divorce proceedings and will bring on record their settlement on the next date of hearing. The matter was adjourned to 22.12.2011.

11. However, on the next date of hearing the counsel for the respondent submitted that the respondent is not agreeable to the settlement which was worked out in the chamber meeting, and that the respondent will contest this petition on merits. Consequently, pleadings were completed and both the parties were heard. CONT.CAS (C) 559/2011 Page 4 of 34

12. The submission of learned senior counsel of the petitioner is that the respondent had entered into the MOU voluntarily, and having made a statement in and having given an undertaking to the Court affirming the same, she cannot, out of her own sweet will, withdraw from the said agreement/undertaking.

13. Mr. Malhotra, learned senior counsel for the petitioner submits that the respondent, to rescind from the understanding reached between the parties, sent various notices and e-mails through her counsel.

14. The petitioner submits that the respondent is going to the school of the child daily, which is upsetting the child and causing disturbance in the studies of the child, despite it being clearly agreed between the parties that the custody of the child will be with the petitioner. This, according to the petitioner, is in clear violation of the settlement. He refers to the averments made by the respondent in the reply in which she has admitted that she has met the child 102 times in the school.

15. He also refers to the notice sent by the counsel for the respondent on 26.09.2011, in which it was mentioned that the only reason for inability to file a second motion divorce petition is on account of ensuring modality of having Aisheeya stay with Tithi permanently .

CONT.CAS (C) 559/2011 Page 5 of 34

16. Mr. Malhotra submits that the amount settled between the parties was in lieu of all the respondent‟s claims including alimony, stridhan etc. and there was no other amount that the petitioner was obliged to pay to the respondent. He submits that the respondent has done a complete volte face in stating that the money was not limited to the amounts mentioned in the MOU and a house and a chauffeur driven car was also promised by the petitioner.

17. Mr. Malhotra submits that the petitioner had fulfilled his part of the obligation and paid an amount of Rupees One Crore Fifty Lakhs to the respondent at the time of moving the first motion petition. He submits that the respondent has taken benefit of the understanding reached between the parties by receiving the said amount. He submits that the said amount was paid in consideration of the respondent being agreeable to seek divorce by mutual consent and the respondent cannot be allowed to back track from the agreement.

18. He places reliance on the case of Shikha Bhatia v. Gaurav Bhatia & Ors., being CONT. CAS(C) 274/2009, decided on 13.05.2010, to contend that the settlement arrived between the parties has to be honoured, and any violation of that understanding will amount to contempt of Court.

CONT.CAS (C) 559/2011 Page 6 of 34

19. The petitioner submits that the respondent has willfully and intentionally disregarded and disrespected the solemn undertaking given by her to the matrimonial Court, whereby the parties were directed to remain bound. The petitioner submits that the respondent has interfered in the administration of justice and is liable to be punished for her contemptuous acts.

20. On the other hand, learned counsel for the respondent Ms.Malvika Rajkotia submits that the allegations of the petitioner are completely false. She submits that the respondent is not a greedy person as is being made out by the petitioner.

21. She submits that the primary concern of the respondent at the time of entering into settlement with the petitioner, and at present also, is the welfare of the child. She submits that the agreement was entered by the respondent only for the reason that the troubled relations of the parties should not affect the upbringing of the child, and it was never the intention of the respondent to completely give up the child.

22. She submits that the petitioner and his family have done everything they can do to traumatize and tutor the child so that the child turns hostile against the respondent. To do so, they started creating obstruction in the access of the respondent towards the child CONT.CAS (C) 559/2011 Page 7 of 34 by not allowing the respondent to talk to the child. The petitioner would switch off his phone when the respondent would call him to talk to the child. She submits that the petitioner would take away the child on long overseas holidays without informing the respondent, and she was not even informed of the child‟s health condition, whenever she was not keeping well.

23. Learned counsel for the respondent submits that the respondent visits the school of the child not to embarrass the child or to create disturbance in her studies, but out of genuine concern which every mother would have for her child. She submits that the respondent goes to the school to reassure the child that her mother is there for her. She submits that the primary reason for the respondent not coming forward for moving the second motion petition for divorce was that the arrangement arrived between the parties has not been reflected in the true sense, and the respondent has every apprehension that after the divorce, even the minimal access to the child will be denied by the petitioner. Ms. Rajkotia submits that the respondent only wants that the interest of the child should be secured.

24. She further submits that the whole purpose of the legislature providing a “cooling off” period, of at least six months, between the first motion and second motion petition is to allow the parties to reconsider their decision whether, or not, they wish to proceed further CONT.CAS (C) 559/2011 Page 8 of 34 for divorce, which would be a life changing event for them. She places reliance on the case of Sureshta Devi v. Om Prakash, (1991) 2 SCC 25, to contend that a party can unilaterally withdraw the consent at any time till passing of the divorce decree.

25. She further refers to decision of Supreme Court in Hitesh Bhatnagar v. Deepa Bhatnagar, AIR 2011 SC 1637.

26. Counsel of the respondent thus submits that the undertaking given by the respondent to the Court cannot be contrary to her statutory rights. She submits that the statutory rights of the respondent cannot be taken away by mere agreement. The respondent submits that she cannot be compelled to give up her issues related to the child‟s visitation/custody under the threat of contempt.

27. Before I proceed to deal with the legal submission of learned counsel for the respondent, that an undertaking given by a party to the Court to remain bound by her agreement to obtain divorce by mutual consent, is not enforceable, because of the statutory provision contained in Section 13B of the Hindu Marriage Act, (which grants a cooling off period to both the husband and wife to rethink their initial decision to agree to divorce by mutual consent), let me first take note of a few relevant facts.

CONT.CAS (C) 559/2011 Page 9 of 34

28. Admittedly, the marriage between the petitioner and respondent has gone sour. The parties, admittedly, have not lived as husband and wife since 15.08.2009. Efforts for conciliation have also failed and they have both submitted that their marriage has broken down. It is also the admitted case of the parties that they jointly moved a petition under Section 13 B(1) of the Hindu Marriage Act for dissolution of marriage by a decree of divorce by mutual consent. This petition was filed on 14.09.2010. This joint petition contains the various terms & conditions agreed to by the parties. Some portions of this petition may be reproduced, as they are relevant:

“5. For the last so many years there have been differences between the petitioner No. 1 and petitioner No. 2 and these have now became irreconcilable and the parties hereto have mutually decided to part ways and dissolve the marriage subject to the terms set out herein. The Petitioners have not co-habited as husband and wife since more than the last one year w.e.f. 15.8.09 and have been living in different portions of the house though under the same roof.

6. That as the marriage is dead and there is no likelihood of the Petitioners living together again, the Petitioners have amicably settled all their matrimonial disputes, difference and claims against each other and have decided to seek a decree of Divorce by Mutual Consent dissolving their marriage under the following terms and conditions:

(a). That the Petitioner No. 2 specifically agrees that she has in her possession all her belongings and valuables including her wari, daaj, Stridhan, jewellery, gifts given to her by both sides before, at and after the marriage, and has no claim or grievance against the Petitioner No. 1 and his family members in this regard.

CONT.CAS (C) 559/2011 Page 10 of 34 (b). In full and final settlement of every claim of the Petitioner No.2, whether it be towards alimony,

maintenance (past, present and future) or on any other ground whatsoever, the Petitioner No. 1 will pay the Petitioner No. 2 a sum of Rs.7,00,00,000/- (Rupees seven crores only). With such payment, the Petitioner No. 2 will be left with no claim or grievance against the Petitioner No. 1 or his family members on any ground whatsoever. The payment of Rs.7,00,00,000/- (Rupees seven crores only) by the Petitioner No. 1 to the Petitioner No. 2 will be as under: (i). That the Petitioner No. 1 will pay to the Petitioner No. 2 a sum of Rs.1,50,00,000/- (Rupees one crore fifty lacs only) vide Cheque No. 862630 dated 6.9.2010 drawn on Oriental Bank of Commerce, Nehru Place, New Delhi in Court on the date the statement of the parties are recorded before the Hon‟ble Court in support of this first motion under Section 13-B (1) of the Hindu Marriage Act, 1955.

(ii). The Petitioner No. 1 will pay to the Petitioner No. 2 the balance amount of Rs.5,50,00,000/- (Rupees Five Crore Fifty Lacs only) by Cheque in Court on the date the statement of the petitioner No. 2 is recorded in support of the second motion u/s 13-B (2), Hindu Marriage Act, 1955. (iii). The Petitioner No. 2 will vacate the matrimonial home at 35 Golf Links, New Delhi alongwith all her clothes and possessions which she acknowledges and admits are with her in her custody within a maximum period of 60 (sixty) days from filing of this Motion.

(iv). In case the Petitioner No. 2 does not appear for making statement in support of the Second Motion within the period prescribed, the Petitioner No. 2 will forfeit her claim to the balance payment of Rs.5,50,00,000/- (Rupees Five Crore Fifty Lacs only).

7. The Petitioner No. 2 specifically agrees that the custody of the girl child Aisheeya will be exclusively with the Petitioner No. 1 and the child will be fully taken care of and her day to day needs provided for by the Petitioner No.1 and the paternal grandparents Mr. Raman Kumar Sood and Mrs. Madhu Sood.

CONT.CAS (C) 559/2011 Page 11 of 34

8. The Petitioner No. 2 will however, be entitled to visit child at 19, Golf Links, New Delhi or take her for outings, including sleepovers, weekends, if the child so desires.

9. After the grant of the first Motion the Petitioner No. 2 will be entitled to take the child on vacations and if the child is agreeable to the same and subject to her school schedules.”

29. When the first motion petition was taken up for consideration before the learned ADJ-01, New Delhi, the parties made their respective statements on oath before the Court. Since we are concerned in this case with the alleged breach of an undertaking given by the respondent to the Court, I may extract a few portions of the said solemn statement made by the respondent before the learned ADJ-01, New Delhi:

“There is no possibility of any reconciliation between me and petitioner no.1 Sh. Avneesh Sood.

Our marriage has irretrievably broken down. Myself and petitioner no.1 have jointly filed the petition no.98/10, it bears my signatures at point A1 and B1 and those of my counsel at point C1. The same is Ex. P3.

My affidavit supporting the petition is Ex. PW2/A. It bear my signatures at points A and B. Vakalatnama of my counsel bears my signatures at point A. It bears my counsel‟s signatures at point B. The vakalatnama is Ex. P6. I have filed the present petition and signed the same along with the documents voluntarily, out of my free will and without any threat or coercion from any quarter. I seek a decree of divorce from petitioner no.1 by way of mutual consent.

I have settled all the matrimonial disputes with petitioner no.1 amicably. It is mutually agreed that petitioner no.1 shall pay a sum of Rs.7,00,00,000/- (Rupees Seven Crores) CONT.CAS (C) 559/2011 Page 12 of 34 to me in full and final settlement. Out of the said amount a sum of Rs.1,50,00,000/- (Rupees One Crore and Fifty Lakhs) has been paid today to me by petitioner no.1 vide cheque no.862630 dated 6.9.2010 drawn on Oriental Bank of Commerce, Nehru Place, New Delhi, in my favour. The balance amount of Rs.5,50,00,000/- (Rupees Five Crore and Fifty Lakhs) shall be paid to me by petitioner no.1 at the time of statement in second motion petition. I shall be bound by the terms and conditions mentioned in the petition Ex. P3 in para no.6 on page 4 to para no.11 on page 7.

I reiterate that I have given my consent to file the present petition voluntarily, without any pressure, duress or coercion. There is no collusion between me and petitioner no.1 in institution of present petition.

I have made the above said statement voluntarily, out of free will and after due contemplation and understanding of its implications”. (emphasis supplied)

30. The learned ADJ-01, New Delhi then proceeded to pass the order dated 14.09.2010. In paragraph 7 of his order, the learned ADJ-01, New Delhi, has observed as follows:

“7. Nothing on record suggests any collusion between the parties. Parties have also stated that they have settled all their matrimonial disputes amicably as per the petition Ex.P3 and they shall be bound by the terms and conditions mentioned therein”. (emphasis supplied)

31. Between 14.09.2010 and 14.03.2011, i.e. for exactly six months, it appears that the respondent did not take a stand contrary to the aforesaid terms & conditions. However, on 14.03.2011, the respondent through her counsel sent a communication to the CONT.CAS (C) 559/2011 Page 13 of 34 petitioner‟s counsel. In this communication it was claimed by the respondent that the aspect of custody of the minor child Aisheeya was arrived at only with a view not to disturb the minor child Aisheeya from her family surroundings of her home, and in view of the fact that the respondent did not have an alternate residence at the time when the first motion divorce petition was filed. It was claimed that paragraphs 7, 8 & 9 of the petition for first motion were signed with certain assurances given to the respondent by the petitioner and his parents. According to the respondent, this assurance was that, eventually, the minor child would be comfortable enough with alternative accommodation for her care to be transferred to her mother. It was claimed that the assurance was that, primarily the custody of the minor child would be with the mother, regardless of the fact that on paper it was mentioned otherwise. It was claimed that even though six months have passed, the said so-called arrangement has not been put in place. The present status does not reflect the true understanding between the parties. Allegations were made with regard to the behaviour of the minor child vis-à-vis the petitioner, his parents and the respondent. The respondent‟s counsel stated that: “Further, under the circumstances it is imperative that the arrangement of paragraphs No.7, 8 and 9 of the first motion divorce be revised and it be clarified that it is the mother who is the primary care given for Aisheeya. CONT.CAS (C) 559/2011 Page 14 of 34 Tithi has been involved considerably in Aisheeya‟s school with the hope and expectation of participating in Aisheeya‟s growing up. She does not have a career and is focused to spending quality time with her daughter. This was the understanding even when the first motion was signed but it is not being allowed to fructify.

Tithi cannot compromise on a document which takes away Aisheeya‟s basic right to enjoy and have the comfort and security of her mother‟s continuous presence in her life”.

32. The respondent in this communication also demanded that the minor child‟s financial interest be secured by some provision, by putting properties in her name and managed for her benefit. It was claimed that there was pressure exerted upon the respondent at the time of signing of the first motion divorce petition and the respondent feared, and was reluctant, to confront a family as powerful as that of the petitioner. The respondent also stated that she was not in an equal bargaining position with that of the petitioner at the time of signing of the first motion petition. It was stated that the purpose of the „cooling off period‟ is to revisit the circumstances of the terms of the divorce. This is what, according to the respondent, she had done. The respondent sought that the minor child should be with her for five days of the week and the weekends be spent by the minor child with her father and her grandparents. It was also claimed that the respondent was made to sign the documents stating that she has received her entire jewellery, which was not the case. According to the CONT.CAS (C) 559/2011 Page 15 of 34 respondent, the understanding was that the jewellery would be left with the petitioner and his family on the assurance that it would be given to the Aisheeya, the minor child. The respondent sought some security to ensure the same.

33. From the aforesaid communication it clearly emerges that the respondent sought to walk out of the agreement arrived at between the parties, as contained in the joint petition. The respondent not only wanted a complete re-hash of the custody and visitation rights qua the child, but also raised other issues with regard to the monetary compensation payable by the petitioner to the respondent in full & final settlement of all her claims. The respondent sought to justify the same on the basis that the first motion petition has been signed by her under duress, coercion and threat and on a verbal assurance which, in fact, ran contrary to the express terms contained in the joint petition.

34. In her reply as well, the respondent states that the settlement amount was not limited to the amount stated to be in the divorce petition (first motion). According to the respondent, the petitioner had assured that they would also provide a house for the respondent.

35. The submission of the respondent with regard to exercise of coercion, undue influence or pressure by the petitioner upon the respondent at the time of making the first motion petition cannot be CONT.CAS (C) 559/2011 Page 16 of 34 gone into in the present proceedings. Even otherwise, there appears to be no substance in these allegations. The first motion petition appears to be the result of mutual negotiation and agreement. The respondent, under the said agreement, agreed to receive Rs. 7 crores as a one-time settlement in lieu of her claim for stridhan, jewellery, gifts and other items, maintenance and alimony. The memorandum of understanding dated 27.08.2010 is executed on non-judicial stamp paper of Rs.1,000/-; is signed by the parties, and; signed by two witnesses. The respondent acted on the said memorandum of understanding by moving the first motion petition. Even in those proceedings, the respondent was represented by the same counsel who is representing the respondent at this stage in these proceedings. There is not a whisper in the first motion petition that the memorandum of understanding was extracted by the petitioner by exercise of coercive or undue influence, or that the assurances given by the petitioner and his parents goes contrary to, or beyond the terms of settlement recorded in the MOU or the divorce petition. Even when she made her statement before the learned ADJ, the respondent did not say that there were other terms and conditions agreed to by the parties other than those reflected in the MOU or the Divorce Petition.

36. Even after the passing of the order in the first motion petition on 14.09.2010, the respondent did not question the correctness of any of CONT.CAS (C) 559/2011 Page 17 of 34 the terms of the MOU on any ground, much less on the ground of coercion or undue influence being exercised by the petitioner upon the respondent.

37. So far as the respondent‟s submission that the terms and conditions contained in the memorandum of understanding and the first motion are contrary to the understanding of the parties vis-a-vis the custody of the minor child, are concerned, once again I find that there is no merit in the same. There was nothing to prevent the parties from recording the arrangement as now sought to be propounded by the respondent, if that was so. It is abundantly clear to me that the respondent has undergone a change of mind and now wants to take over the custody of the minor child, contrary to the express understanding reached between the parties earlier. To defend her present position, she is now making a baseless and unsubstantiated allegation of undue influence, coercion etc. against the petitioner.

38. If the respondent is so minded and if she is entitled, in law, to assail the memorandum of understanding and the terms and conditions contained in the first motion petition, the respondent may take appropriate steps. However, this Court, in these proceedings, is not required to examine the said assertions of the respondent founded upon alleged exercise of coercion or undue influence, or upon the plea CONT.CAS (C) 559/2011 Page 18 of 34 that the actual understanding of the parties was different from what stands recorded in the memorandum of understanding and the first motion petition. So far as this Court is concerned, this Court will proceed on the basis that the MOU and the first motion had been arrived at, and signed by the parties out of their own free will and consent, and the terms and conditions contained in the MOU and the first motion petition mean what they plainly say, and not what is contended by the respondent before me.

39. The issue which arises for my consideration is whether the conduct of the respondent in resiling from her undertaking given to the Court, by which she was bound, tantamounts to contempt of Court. “Civil Contempt” is defined to mean willful disobedience of any judgment, decree, direction, order, writ or other process of the Court or wilfull breach of an undertaking given to a Court. The respondent has sought to confuse the issue by asserting that she has a right not to give her consent to proceed further under Section 13-B(2) of the Hindu Marriage Act after the “cooling off” period of 6 months has expired. No doubt, the respondent cannot be compelled to give her consent for moving the second motion petition under Section 13-B(2), and she has the right to withhold such consent. But does that mean that a party who has given an undertaking to the Court that he/she shall grant his/her consent for moving the second motion petition, as a part of a CONT.CAS (C) 559/2011 Page 19 of 34 settlement wherein he/she has derived benefits and advantage, can simply walk out of the said agreement and undertaking given to the Court without the consequences flowing from the Contempt of Courts Act? In my view the answer to this question would normally be “No”, though there may be exceptional circumstances in which a party may be justified in not granting his/her consent to move the second motion petition despite the undertaking given to the Court on account of extraordinary developments which may take place after the giving of the undertaking to the Court, and before the time for giving the consent for the second time under Section 13-B(2) arrives.

40. The issue before the Supreme Court in Sureshta Devi (supra) was whether consent once given can be withdrawn in a proceeding for divorce by mutual consent.

41. The Supreme Court in para 13 of Sureshta Devi (supra) observed as under:-

“13. From the analysis of the section, it will be apparent that the filing of the petition with mutual consent does not authorise the Court to make a decree for divorce. There is a period of waiting from 6 to 18 months. This interregnum was obviously intended to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends. In this transitional period one of the parties may have a second thought and change the mind not to proceed with the petition. The spouse may not be a party to the joint motion under sub-section (2). There is nothing in the section which prevents such course. The section does not provide that if there is a change of mind it should not be by one party alone, but by both. The High CONT.CAS (C) 559/2011 Page 20 of 34 Courts of Bombay and Delhi have proceeded on the ground that the crucial time for giving mutual consent for divorce is the time of filing the petition and not the time when they subsequently move for divorce decree. This approach appears to be untenable. At the time of the petition by mutual consent, the parties are not unaware that their petition does not by itself snap marital ties. They know that they have to take a further step to snap marital ties. Sub- section (2) of Section 13-B is clear on this point. It provides that “on the motion of both the parties. … if the petition is not withdrawn in the meantime, the Court shall … pass a decree of divorce …”. What is significant in this provision is that there should also be mutual

consent when they move the Court with a request to pass a decree of divorce. Secondly, the Court shall be satisfied about the bona fides and the consent of the parties. If there is no mutual consent at the time of the enquiry, the Court gets no jurisdiction to make a decree for divorce. If the view is otherwise, the Court could make an enquiry and pass a divorce decree even at the instance of one of the parties and against the consent of the other. Such a decree cannot be regarded as decree by mutual consent.” (emphasis supplied)

42. In Hitesh Bhatnagar (supra), both husband and wife had filed mutual divorce petition. After the passing of the first motion petition the wife withdrew her consent before the decree of divorce could be granted. The husband insisted for passing of the decree and the matter travelled up to Supreme Court. The Supreme Court framed the following question to be determined “Whether the Court can grant a decree of divorce by mutual consent when the consent has been withdrawn by one of the parties, and if so, under what circumstances”.

43. The Court answered the above mentioned question in the following words:-

CONT.CAS (C) 559/2011 Page 21 of 34 “15)……… Besides, from the language of the Section, as well as the settled law, it is clear that one of the parties may withdraw their consent at any time before the passing of the decree. The most important requirement for a grant of a divorce by mutual consent is free consent of both the parties. In other words, unless there is a complete agreement between husband and wife for the dissolution of the marriage and unless the Court is completely satisfied, it cannot grant a decree for divorce by mutual consent. Otherwise, in our view, the expression „divorce by mutual consent‟ would be otiose. 16) In the present fact scenario, the second motion was never made by both the parties as is a mandatory requirement of the law, and as has been already stated, no Court can pass a decree of divorce in the absence of that. The non-withdrawal of consent before the expiry of the said eighteen months has no bearing. We are of the view that the eighteen month period was specified only to ensure quick disposal of cases of divorce by mutual consent, and not to specify the time period for withdrawal of consent, as canvassed by the appellant.”

44. In neither of these cases the Supreme Court was dealing with the issue, whether the breach of an undertaking given to the Court in terms of a settlement arrived at between the parties, to grant consent for the second motion petition, would amount to civil contempt, or not. A party is not bound at the stage of moving the first motion petition to give an undertaking to the Court that he/she shall grant his/her consent for moving a second motion petition as well. The law gives both the spouses the right to opt out of the divorce proceedings, and not to give their respective consent to proceed with the second motion. In the present case as well, it was open to the respondent not to have given her undertaking to the Court, that she would give her consent to CONT.CAS (C) 559/2011 Page 22 of 34 move the second motion petition. However she did, as a matter of fact, give her undertaking to the Court to this effect. She gave this undertaking on account of her settlement with the petitioner wherein she received a substantial amount of Rs.1.5 crores from out of the total settlement amount of Rs. 7 crores. Had she not agreed to give the said undertaking and, in fact, not given the said undertaking to the Court, obviously the settlement agreement would not have been acted upon by the petitioner and he would not have paid the said amount to the respondent which she accepted, pocketed and appropriated.

45. In Shikha Bhatia (supra) the wife had filed an FIR against the husband. The husband filed the anticipatory bail application and during pendency of that petition, a settlement was reached between the parties to the effect that the parties will seek divorce by mutual consent, and husband will pay 8 lakhs to the wife at different stages and all the pending cases between the parties will be withdrawn by both the parties. Acting on that settlement the anticipatory bail was granted to the husband and he also paid certain amount to the wife. Thereafter the husband did not comply with the terms of the settlement and the Court held him guilty of contempt of Court. The Court observed:

“The respondents once having taken the advantage of the agreement entered into the terms of the settlement cannot CONT.CAS (C) 559/2011 Page 23 of 34 be withdrawn by the respondents to suit his whims and fancies and to the determent of the petitioner.”

46. As aforesaid, the respondent was not bound to give the said undertaking to the Court. However, having given the same, voluntarily and consciously, with a view to derive the benefit of the agreement with the petitioner, if the respondent walks out of the same, only for the reason that she has changed her mind with regard to the custody/visitation rights of the minor child, she must take the consequences. Pertinently, even now, the respondent is not averse to proceeding with the mutual divorce petition and filing a second motion petition. However, she wants to do the same on her own terms in relation to alimony and custody/visitation rights, contrary to her earlier agreement which formed the basis of the first motion petition. It is, therefore, clear that her decision to withhold her consent for moving the second motion petition does not stem out of any new development or mitigating circumstance which would justify the same, but only on account of her having a change of mind on the aforesaid two aspects. It is not that the respondent has decided to continue with the marriage with the petitioner. She has not expressed any desire to resume marital life with the petitioner. It is not her case that her initial decision to move the mutual consent divorce petition was a decision taken by her in haste or was a mistake. Even now she does not dispute the fact that the marriage has, in fact, broken down but she CONT.CAS (C) 559/2011 Page 24 of 34 wants to use her right not to give consent for the second motion petition as a bargaining point, which the petitioner prefers to call a black mail tactics .

47. No doubt the law gives the right to both the parties to take a decision whether, or not, to continue with the mutual consent divorce proceedings, and for that purpose a cooling off period of at least 6 months is provided under the scheme of the Act. It does not mean that an undertaking given by them to the Court to continue their consent even for moving the second motion petition can be said to be an illegal consent or undertaking or an undertaking recorded by the Court without jurisdiction. She, while giving her undertaking, did not undertake to commit an illegality, or to do anything which is barred by law. No one compelled the respondent to give the said undertaking. She could have kept her options open whether, or not, to give her consent for moving the second motion petition at the end of the cooling of period of six months. But she did consciously decide to give the said undertaking to the Court. This she did to derive benefit under the agreement with the petitioner.

48. If a party is permitted to resile from an undertaking given to the Court, in pursuance of an agreement arrived at between the parties, without any penal consequences, the same would completely destroy the sanctity attached to such solemn undertakings, and would CONT.CAS (C) 559/2011 Page 25 of 34 encourage dishonesty and disrespect for the judicial process. It would also undermine the majesty and authority of courts, and instill doubts in the minds of the litigating public with regard to the efficacy of the judicial process and, in particular, with regard to the process of accepting undertakings by the Court and of the efficacy of the undertakings given to the Court by a party, and the acceptance thereof by the Court, as a part of a settlement process. It was on account of the respondent‟s conduct of voluntarily giving her undertaking to the Court to abide by her settlement, and the acceptance thereof by the Court, which led the petitioner to agree to pay an amount of Rs. 7 crores in all to the respondent, and to part with a huge amount of Rs. 1.5 cores at the first motion stage. The respondent cannot make mockery of the law and mock at the Courts by now claiming that she has decided not to give her consent for moving the second motion petition, and that too for the reasons that she wants to renegotiate the terms of settlement, both in relation to her monetary compensation and custody/ visitation rights in respect of the minor child. It is clear that the respondent has exploited and abused the process of the Court to serve her purpose, without intending to adhere to her solemn undertaking given to the Court.

49. A Division Bench of the Karnataka High Court in S. Balasubamaniyam v. P. Janakaraju & Anr., 2004 (5) Kar. LJ 338 CONT.CAS (C) 559/2011 Page 26 of 34 (DB), rejected the defence set up by the respondent that the court which initially passed the eviction decree did not have jurisdiction, and the decree was a nullity and, consequently, breach of an undertaking given to the revisional court did not tantamount to contempt of court.

50. The petitioner instituted an eviction petition under the Karnataka Rent Control Act. That petition was allowed. The revision petition filed by the tenant under the said Act was dismissed by the District Court. A second revision petition was preferred before the Karnataka High Court. During the pendency of that revision petition, the tenant sought three years time to deliver back the possession of the premises to the landlord. This was agreed to by the landlord. Accordingly, the tenant filed an undertaking before the court agreeing to, inter alia, voluntarily hand over the premises at the end of three years to the landlord. The revision petition was disposed of by the learned Single Judge in view of the said settlement. At the end of three years period, the tenant did not vacate the premises as undertaken. Consequently, the landlord filed the contempt petition alleging breach of the undertaking by the respondent/tenant, and praying for initiation of contempt proceedings.

51. The defence taken by the tenant was that the eviction petition under the Karnataka Rent Control Act, as initially filed, was not maintainable and that the landlord should have preferred a civil suit for CONT.CAS (C) 559/2011 Page 27 of 34 ejectment after terminating the tenancy under the provisions of the Transfer of Property Act.

52. When the eviction petition was preferred, the position in law was that section 31 of the Karnataka Rent Control Act, which entitled the landlord of an non residential premises, rent whereof was more than Rs.500/- per month, to file a civil suit for ejectment, had been struck down by the Karnataka High Court. It is for this reason that the landlord had proceeded to file an eviction petition by resort to the provisions of the Karnataka Rent Control Act. However, after the recording of the compromise before the High Court in the second revision proceedings, the Supreme Court upheld the said provision. The tenant, therefore, argued that since section 31 of the Karnataka Rent Control Act was declared by the Supreme Court to be valid, the eviction proceedings could not be instituted by resort to the provisions of the Karnataka Rent Control Act. It was argued that the eviction decree passed against the tenant was itself a nullity, as it had been passed without jurisdiction.

53. The Division Bench of the Karnataka High Court, speaking through Mr. Justice R.V. Raveendran, as his lordship then was, firstly rejected this contention and held that the order of eviction was not a void order, but a voidable order. The said order was not avoided by the respondent/tenant at any stage – even till the stage when he gave CONT.CAS (C) 559/2011 Page 28 of 34 his undertaking. The order passed by the learned Single Judge disposing of the second revision petition could, therefore, not be called a void order. That order of the learned Single Judge could not even be called a voidable order.

54. The Division Bench then proceeded to consider whether the respondent/tenant who had given a solemn undertaking to the court to vacate the premises on the appointed day, and thereby had secured an advantage/benefit, i.e. three years time to vacate the premises, which he had availed of, is absolved from complying with such an undertaking.

55. The Division Bench, in paras 20 and 22 held as follows: “20. The principles relating to contempt are clear. The definition Civil Contempt includes wilful breach of an undertaking given to a Court. Public interest requires that solemn undertakings given to a Court with the intention of obtaining any benefit should not be breached willfully. No litigant can be allowed to wriggle away from a solemn undertaking given to the Court, as it will open dangerous trends and defeat the very purpose of giving undertakings to Court. While Courts will not be vindictive, Courts cannot also allow themselves to be trifled with by violating the solemn undertakings given to them. Litigants ought to understand that once they given an undertaking to a Court, they should comply with it in all circumstances, the only exceptions being fraud or statutory bar. They cannot break an undertaking with impunity and then attempt to justify it. The breach of solemn undertaking given to a Court is a serious matter and will have to be dealt with seriously. Further, while execution of a decree is a matter between the decree holder and the judgment debtor, an

undertaking to a Court is a matter between the Court and the person who gives the undertaking to the Court. The CONT.CAS (C) 559/2011 Page 29 of 34 right of a landlord to get his tenant vacated in terms of an order of eviction has nothing to do with the solemn undertaking given by a tenant to the Court to vacate the premises to obtain the benefit of grant of time for vacating the premises. It therefore

follows that even if the order of eviction becomes unexecutable for any reason, that will not absolve the person giving the undertaking to Court, from acting in term of it.

22. We are of the view that the validity of order of eviction, has nothing to do with a contempt action taken for any willful breach of solemn undertaking given by a litigant to the Court to vacate the premises. Reliance place on the decision rendered with reference to disobedience of orders passed without jurisdiction, as noticed above, may not be relevant, as the contempt alleged is not wilful disobedience of any order/judgment, but wilful breach of an undertaking given to this Court. We, therefore, hold that irrespective of the fact that an order of eviction is executed or unexecutable, it will not absolve the respondents from their liability and responsibility to act in terms of the solemn undertaking given to the Court. Failure to vacate the premises as undertaken by the tenants – respondents is clearly a willful breach of undertaking given to the Court which is a civil contempt punishable under the Act”. (emphasis supplied)

56. From the aforesaid, it is clear that the mere inexecutability of the undertaking given by the respondent to the learned ADJ-01, New Delhi in the present case, would not absolve the respondent from the liability and responsibility to act in terms of the solemn undertaking given to the Court, and her failure to act in terms of her undertaking is clearly her willful breach of her undertaking given to the Court, which is a civil contempt punishable under the Contempt of Courts Act. CONT.CAS (C) 559/2011 Page 30 of 34

57. I now turn to examine the respondents‟ conduct in visiting the minor child at her school regularly which, according to the petitioner, disturbs the child and is against the terms and conditions agreed upon by the parties, which has been approved by the Court.

58. It appears from the record that on 16.04.2011, the counsel for the respondent sent a communication, wherein respondent admitted that the minor child was reluctant to meet the respondent. However, the reason for the same, according to the respondent, was stated to be the petitioner‟s conduct. The respondent also admitted to visiting the class of the minor child regularly.

59. In response to the present petition, the respondent has filed her reply. In her reply, the respondent states in para 2 of the preliminary submissions as follows:

“2. At the outset, it is stated that the entire purpose of the statutory “cooling off” period of at least six months between the first motion and final motion divorce is to allow the parties to avail of the time to reconsider such a life changing event as a divorce particularly where there is a child involved.

In the present case, the daughter Aisheeya is 8 years old. She is traumatized by the divorce and by the fact that she has to choose between her parents. She has even told the Court during her chamber interview on 15.12.2011 that she would like to live with both parents as she loves them both equally. However, when repeatedly asked, she said that she would like to live with her father”.

CONT.CAS (C) 559/2011 Page 31 of 34

60. The respondent also adds that the choice exercised by the minor child to live with her father is because of continuity and influence, rather than opting for either parent. The above explanations and defences of the respondent do not impress the Court. These explanations, in any event, are not an answer to justify the respondents conduct. Her visitation rights have been clearly defined in the agreement of the parties. She cannot seek to enlarge the same on her own.

61. The respondent cannot be permitted to disturb the arrangement arrived at between the parties mutually with regard to the custody of visitation rights on her own, when the same have found judicial acceptance and which binds the parties. The terms of the arrangement arrived at between the parties has received the courts imprimatur. The continued breach of the said arrangement by the respondent is also highly contumacious and cannot be permitted to be continued.

62. I, therefore, hold the respondent guilty of contempt of Court as she has breached her undertaking given to the learned ADJ-01, New Delhi on 14.09.2010 in the first motion divorce proceedings under Section 13-B(1) of the Hindu Marriage Act. The agreement arrived at between the parties not only deals with the aspect of divorce, to be obtained by mutual consent, but also deals with the aspect of CONT.CAS (C) 559/2011 Page 32 of 34 custody/visitation rights of the minor child. Admittedly, the respondent has breached the said arrangement as well, and consequently, breached her undertaking to abide by the arrangement with regard to the custody and visitation rights of the minor child, given to the Court and accepted by the Court. She admits to regularly going to the child‟s school to meet her on a regular basis which disturbs the child psychologically on a day-to-day basis.

63. In the light of the aforesaid discussion, I allow this petition and direct as follows:-

(i) The respondent is directed to show cause as to why she should not be punished for contempt of Court on account of her having breached her undertaking given to the learned ADJ-01, New Delhi in the first motion petition under Section 13-B(1) of the Hindu Marriage Act on 14.09.2010 which was accepted by the said Court, and on account of her breaching her undertaking to the said Court to abide by her agreement in relation to the custody and visitation rights of the minor child, Aisheesya.

(ii) The respondent should file her reply within four weeks of her being served with a show cause notice as aforesaid to CONT.CAS (C) 559/2011 Page 33 of 34 explain why she should not be punished for contempt of Court.

(iii) The respondent is directed not to breach the settlement arrived at between the parties in relation to the custody and visitation rights of the minor child, Ayesha and not to visit the said child to meet her at her school.

(iv) The respondent is subjected to costs which are quantified at Rs. 1 lakhs to be paid to the petitioner within four weeks.

(VIPIN SANGHI)

JUDGE

APRIL 30, 2012

as/sr/bsr

CONT.CAS (C) 559/2011 Page 34 of 34
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Father in law convicted u/s 202 for failure to inform the authorities as to DIL’s suicide

April 15th, 2012
Comment : In this case of unnatural death of a DIL – notwithstanding failure of prosecution to bring home offences 302/306/304B against the accused – convicted the FIL u/s 202 for failure to inform the police – intentional ommission to give information having reason to believe that an offence is committed.

Supreme Court of India

Bhagwan Swarup And Anr vs State Of Rajasthan on 28 August, 1991

Equivalent citations: 1991 AIR 2062, 1991 SCR (3) 820

Bench: Reddy, K Jayachandra

PETITIONER:

BHAGWAN SWARUP AND ANR.

Vs.

RESPONDENT:

STATE OF RAJASTHAN

DATE OF JUDGMENT28/08/1991

BENCH:

REDDY, K. JAYACHANDRA (J)

BENCH:

REDDY, K. JAYACHANDRA (J)

PANDIAN, S.R. (J)

CITATION:

1991 AIR 2062 1991 SCR (3) 820

1991 SCC (4) 54 JT 1991 (6) 309

1991 SCALE (2)414

ACT:

Penal Code, 1860–Sections 302, 201 and 120-B—Charges-Conviction by High Court–Modification of sentence by convicting accused no. I u/s. 202. IPC for making illegal omission to inform the authorities and ac- quitting the accused of the offences by Supreme Court u/s. 2(a) of the Supreme Court (Enlargement of General Appellate Jurisdiction) Act. 1970.

Supreme Court (Enlargement of General Appellate Juris- diction) Act, 1970–Section 2(a)–Appeal–Appreciation of evidence–conspiracy cannot be proved by conjectures and surmises–Absence of evidence to connect accused with the offences–Modification of sentence by convicting accused no. 1 u/s. 202, IPC. for making illegal omission to inform the authorities.

Evidence Act, 1872—Section 3–Appreciation of evi- dence-Failure of prosecution to prove guilt of accused–Conviction of accused no. 1 u/s. 202, IPC for making illegal omission to inform the authorities. Penal Code, 1860—Section 202–Ingredients to prove by prosecution indicated.

Penal Code, 1860–Sections 202, 306–Suicide–Whether offence of abatement punishable–Whether father-in-law has obligation to inform the authorities the suicide of daugh- ter-in-law.

HEADNOTE:

The appellants-father and son (A 1 and A 2)-were tried under Sections 302, 201 and 120-B I.P.C. for causing murder of the wife of A.2.

The deceased was married to A 2 in 1961. Two sons and one daughter were born to them. Their matrimonial fife was not smooth. There were frequent quarrels. It was in the evidence that the deceased was not healthy both physically and mentally. She was also admitted in

821

mental hospital once. She used to confine herself to her room and she appeared to be somewhat mentally deranged. On 18.3.82 the dead body of the deceased was found in her room in the house of the accused. At that time admitted- ly A 2 was not in the house and he was at Suratgarh. On being informed about the death, A 1 sent for a doctor, who examined the deceased and declared her to be dead. Thereaf- ter A 1 informed P.W. S, the father of the deceased. The brother of the deceased, P.W. 6 told P.W. 5 that he had seen the dead body lying in the room and that it was giving rotten smell. P.W. 6 lodged a report before the Police. The investigation was taken up, held the inquest, exam- ined the witnesses and sent the dead body for post-mortem. The Doctor P.W. 2, who conducted the post-mortem, opined that the death was due to head injury and pressure in the neck region.

After completion of the investigation, the charge-sheet was laid. 22 witnesses were examined on behalf of the prose- cution. The accused denied the offences. A 1 stated that he was away from 14.3.1982 onwards and was at Jodhpur in his daughter’s house. In support of his plea D.W. 1, the neighb- out of A 1’s daughter and his grand-danghter, D.W. 2, namely the daughter of A 2 and the deceased were examined. A 2 stated that he was at Suratgarh from 11.3.1982 onwards. Both of them ‘denied the allegations of the pfrosecution. The trial court held that there was no evidence of conspiracy between the A 1 and A 2 for murdering the de- ceased and the circumstances relied upon by the prosecution were hardly sufficient to connect them with the murder and the accused were acquitted by the trial court. The State preferred an appeal before the Division Bonch of the High Court and the High Court convicted them under Section 120-B and Section 302 read with 34 of the I.P.C. and sentenced each of them to undergo imprisonment for life, against which this appeal was preferred under Section 2(a) of the Supreme Court (Enlargement of General Appellate Jurisdiction) Act, 1970.

The appellants contended that the High Court acted an prejudice and suspicion and that there was absolutely no material to prove the conspiracy and muchless to connect the two accused in any manner with the murder.

822

The respondent supported the findings of the High Court and also contended that the accused would at least be liable of having committed other offences.

Disposing of the appeal by making modification in the sentence, this Court,

HELD: 1. The second accused was not present in the scene-house, where the occurrence took place from 11th to 20th March, 1982 and that the first accused was at Jodhpur in his daughter’s house from 14.3.82 to 17.3.82 and returned to Jaipur on 18.3.82. Therefore, they were not present in the house when the deceased died. The Medical Officer, P.W. 2 could not say definitely as to whether the death has occurred before four days of his examination and there is absolutely no evidence either circumstantial or direct to hold that the death took place on 11.3.82 itself as found by the High Court. The evidence of D.W. 2 who is none other than the daughter of the deceased and was very much in the house throughout categorically stated that her mother was alive on 15th March, also. Apart from D.W. 2 the only other inmate of the house during the crucial period was the moth- er-in-law of the deceased who was not even charge-sheeted. The letter Ex.P-15 written by the first accused does not in any manner incriminate them and the High Court has grossly erred in holding that A 1 and A 2 entered into conspiracy merely on the basis of conjectures and surmises drawn from theletter. P.Ws. 4, 9 and 10 have not supported the prosecu- tion case and the remaining evidence does not in any manner implicate A 1 and A 2 and the other remaining inmate of the house, the mother-in-law of the deceased, was not even suspected. Therefore having given anxious and careful con- sideration to the facts and circumstances of the case it is felt by the Court that the prosecution has miserably failed to bring home the guilt of the appellants. [835A-E]

2. Section 202 I.P.C. punishes the illegal omission of those who under law are bound to give information in respect of an offence which he is legally bound to give, particular- ly being the head of the family. Under this provision it is necessary for the prosecution to prove (1) that the accused had knowledge or reason to believe that some offence had been committed (2) that the accused had intentionally omit- ted to give information respecting that offence and (3) that the accused was legally bound to give that information. [836G-H]

3. A 1 was at least under an obligation to give infor- mation about the death of the deceased since the same was unnatural. From the

823

medical evidence, it is clear that it was not a natural death and consequently the death should at least be noted as one of suicide. Even in the case of suicide an offence of abetment punishable under Section 306 is inherent. Therefore even in the case of a suicide there is an obligation on the person, who knows or has reason to believe ‘that such a suicidal death has occured, to give information. [835G-836A]

4. In the instant case A 1 returned to his house where the dead body was lying on 18.3.82 and the circumstances clearly go to show that he had knowledge that the deceased died of an unnatural death. Therefore he had knowledge or at least had reason to believe that an offence had been commit- ted even if, at that stage, be thought that it was only a suicide. Therefore it was his bounden duty particularly as head of the family to inform the authorities. He omitted to do so. On the other hand, he went about telling that the deceased was still alive and her condition was serious. But when P.W. 6, the brother of the deceased, came to the house and enquired, A 1 told him that the body would be Cremated and he intended to do so without informing the authorities. Therefore all the ingredients of Section 202 are made out against him and he clearly committed the offence punishable under this Section at. that stage. [838B-D]

5. The fact that A 1 himself was made an accused in other offences subsequently does not absolve him of his complicity in respect of the offence punishable under Sec- tion 202 I.P.C. [838D]

Kalidas Achamma v. The State ofA.P S.H.O. Karimnagar, I Town P.S., [1987] 2 ALT 937, Approved.

Harishchandrasing Sajjansingh Rathod and Another v. State of Gujarat, [1979] 4 SCC 502, Distinguished.

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 303 of 1984.

From the Judgment dated 19.5.1984 of the Rajasthan High Court in D.B. Criminal Appeal No. 129 of 1983. R.K. Jain, R.P. Singh and R.K. Khanna for the Appellants. Sushil Kumar and AruneShwar Gupta for the Respondent. The Judgment of the Court was delivered by

824

K. JAYACHANDRA REDDY, J. There are two appellants. They are father and son respectively and they figured as A 1 and A 2 before the trial court. They were tried for offences punishable’ under Sections 302, 201 and 120-B I.P.C. for causing murder of Madhu Saxena, wife of A 2 and daughter-in-law of A 1, the deceased in the case. They were acquitted by the trial court. The State preferred an appeal before the Division Bench of the High Court and the Division Bench of the High Court convicted them under Section 120-B and Section 302 read with 34 of the I.P.C. and sentenced each of them to undergo imprisonment for life. They have preferred this appeal under Section 2(a) of the Supreme Court (Enlargement of General Appellate Jurisdiction) Act. 1970.

The deceased was married to A 2 in the year 1961. Two sons and one daughter were born to them. A 1, father of A 2, was a practising lawyer after retiring from the Government Service. The matrimonial life of the deceased and A 2 was not smooth. There were frequent quarrels. The accused lived in their own house alongwith the deceased. It is in the evidence that the deceased was not healthy both physically and mentally. She was also admitted in mental hospital once. She used to confine herself to her room and she appeared to be somewhat mentally deranged. The daughter of the deceased, who was examined as D.W. 2, aged 13 years was studying in 1Oth Class and she was also living in the same house. On 18.3.82 the dead body of the deceased was found in her room in the house of the accused. At that time admittedly A 2 was not in the house and he was at Suratgarh. On ‘being informed about the death A 1 sent for Dr. Madan Lal Arora, who exam- ined the deceased and declared her to be dead. Thereafter A 1 informed P.W. 5, Jagmohan Prasad, the father of the de- ceased. P.W. 5 went there and enquired. A 1 told P.W. 5 that the deceased be cremated at 9 A.M. The brother of the de- ceased told P.W. 5 that he has .seen the dead body lying in the room and that it was giving rotten smell. P.W. 6 lodged a report before the Police. P.W. 22 took up the investiga- tion, held the inquest, examined the witnesses and sent the dead body for post-mortem. The Doctor P.W. 2 conducted the postmortem. He found that the body was giving rotten smell and the skin here and there was peeled off, nails were loose and the tongue was found in between the teeth. He found an injury on the head. He also found that some of the organs were decomposed and noticed greenishbrown discolouration on the neck. He opined that the death was due to head injury and pressure in the neck region. He, however, sent the tissues of the trachea though decomposed and a piece of neck skin and also viscera for histopathology and for chemical analysis, but the

825

pathologist could not give opinion regarding the piece of skin and the tissues of the trachea. The pathologist noted that the skin was discoloured and that the tissues and the mussle attached to the trachea showed no abnormality. The Doctor P.W. 2 opined that the head injury was caused by blunt weapon: and that death is. result of neck injury. The pressure on the left and front of the neck was apparent. After completion of the investigation, the charge-sheet was laid. 22 witnesses were examined on behalf of the prosecu- tion. The accused dented the offences. A 1 stated that he was away from 14.3. 1982 onwards and was at Jodhpur in his daughter’s house. In support of his plea D.W. 1, Dr. Ram Krishna Mehta, the neighbour of A 1’s daughter, was exam- ined. He also examined his grand-daughter D.W. 2, namely the daughter of A 2 and the deceased. A 2 stated that he was at Suratgarh from 11.3.1982 onwards. Both of them denied the allegations of the prosecution.

The case registered rests on circumstantial evidence: The trial court held that there was no evidence of conspira- cy between the A 1 and A 2 for murdering the deceased. It further held that there is no legal proof also that the Circumstances relied upon by the prosecution are hardly sufficient to connect them with the murder. The trial court. however, severely criticised about the iII-treatment and hard behaviour of A 1 and A 2 towards the deceased. The High Court, however, took a different view. The High Court mainly relied on the evidence regarding the ill-treat- ment of the deceased by A 1 and A 2 and held that the ac- cused had strong motive. The High Court has also referred to the earlier incidents in some of the letters. The High Court accepted the medical evidence in to and reached the con- clusion that the death was homicidal and due to asphyxia due to head injury and pressure on the neck. Finally, the High Court, relying on the conduct of the accused after coming to know about the death of the deceased, reached the conclusion that the two accused conspired and got .the deceased mur- dered and accordingly convicted them under Sections 302 read with 34 I.P.C. and 120-B I.P.C.

Shri R.K.Jain, the learned counsel for the appellants submitted that the High Court has merely acted on prejudice and suspicion and that there is absoluteIy no material to prove the conspiracy and muchless to connect the two accused in any manner with themurder

The prosecution examined 22 witnesses. P.W. 1 an Assistant 826

School teacher in Jaipur and related to the deceased deposed that she attended a dinner in the house of the deceased and A 2 and in the year 1978 when the deceased came to her house she was having some spots ‘ of beating by sticks on her back and the deceased told PW. 1 that she was beaten by her hus- band. On 18.3.82 P.W. 1’s neighbour told her that there was a telephone message fxom A 1 that the deceasd was about to die. On that P.W. 1 and others went to the house of the deceased. They opened the room from where bad smell was coming and in that room they saw the dead body of the de- ceased which was decomposed. A 1 who was present there told them that they would cremate the dead body that night. On that P.W. 5, the husband of P.W. 1 and the brother of the deceased objected to. P.W. 1 has also mentioned about other incidents of cruel treatment meted out to the deceased. P.W. 2 is the Doctor, who conducted the post-mortem and we shaft advert to his evidence later. P.W. 3 is the eider sister of the deceased. She only stated that she got the information about the death of the deceased. P.W.. 4 is the son of the deceased and A 2. He deposed that on 11th March, 1982 his father A 2 came with him to the bus-stand to see him off. P.W. 4 met the deceased before leaving on the evening of 11th March, 1982 and talked to her. At that time the condi- tion of the deceased was very weak and she was unhealthy. P.W. 4 also deposed that his father A 2 was to go to Surat- garh by the evening of 11.3.82. This witness was treated hostile.In the crossexamination by the defence this witness stated that his sister Gianwati who was examined as D.W. 2 told him that she went regularly to the room of the deceased to give food from 11.3.82 to 15.3.82 and-that on 16.3.82 D.W. 2 did not meet the deceased due to headache and on 17th and 18th March the deceased did not respond when D.W. 2 called her. P.W. 4 further deposed that D.W. 2 also told the same to her grand-mother. P.W. 5 is the father of the de- ceased. He also deposed about the iII-treatment of the deceased by the accused and their demand for dowry. He further deposed that the neighbour told them that he re- ceived a telephone message from A 1 that the deceased was ‘ about to die. Thereupon P.W. 5 sent his son P.W. 6 to A 1 s house. Later he was told by A 1 who came to his house that the deceased died and the Doctor has declared her dead. ThereUpon P.W. 5 wanted to know the name of the Doctor. Thereupon A 1 told him that the deceased would be cremated. A little later P.W. 6 also came and told him that the de- ceased had died before many days and her dead body was giving rotten smell. P.W. 6 is brother of the deceased and son of P.W. 5. He also.deposed about the ill-treatment meted out to the deceased. He further stated that on 18.3.82 on receiving the information about the serious condition of the deceased he went to house of

827

the deceased and he found that the deceased had already died and the A 1 told him that the dead body would be cremated, whereupon he informed his father P.W. 5 and then lodged a report before the police. The police arrived and prepared a panchnama. P.W. 7 is the neighbour of the accused. He only attested the site plan prepared by the police. P.W. 8 is a practising Doctor and he deposed that on 18.3.82 A 1 came to him’ at about 5.30. P.M. and told him that his daughter-in- law namely the deceased was in serious condition. Thereupon he went to the house and saw the deceased. He examined the deceased and declared her to be dead. P.W. 9 also was exam- ined to speak about the cruelty but he was treated hostile. P.W. 10 also belongs to the same locality. He only deposed that the body was emitting foul smell and he signed the inventory prepared by the police. P.W 11 is a photographer who took the photographs of the room and the dead body. P.W. 12 is Gurubux Saxena who got the telephonic message from A 1 that the deceased was seriously ill and thereupon he in- formed P.Ws 1, 5 and 6. P.W. 13 is the cousin of the de- ceased. He also deposed about the cruelty meted out to the deceased. He further deposed that on 18.3,82 the deceased died and he was asked by P.W. 5 to go to the house of the deceased. He was informed by A 1 that the body would be cremated. Thereupon he and P.W. 6 went and .gave a report to the police. P.Ws 14 to 21 are the formal official witnesses. Out of them P.Ws 17, 18, 19 and 20 are examined who spoke about the movements of A 2. The sum and substance of their evidence is that A 2 was posted as expert of plant protec- tion in Suratgarh and that leave was granted to him on 11.3.82. This evidence may not be very much relevant because it is not the prosecution case that A 2 was present in the house at the time of the death of the deceased. P.W. 22 is the Sub-inspector who investigated the case. He deposed that on receipt of the report he went to the place of occurrence, held the inquest and sent the dead body for postmortem. He also speaks the seizure of some letters.

In the examination under Section 313 Cr. P.C. both the accused stated that they are innocent. A 1’s case was that he was away at Jodhpur from 15th March, 1982 onwards and was staying in her daughter’s house and he’ came to Jaipur only on 18th March, 1982 and then he was told about ‘the death of the deceased. Thereupon he called the Doctor P.W. 8 who examined and pronounced the deceased to be dead. He denied about the allegations of iii-treatment of the deceased. A 2 stated that he married the deceased in the year 1961 and they were blessed with two sons land one daughter. He also stated that he was a Gazetted Officer in Agriculture Depart- ment and he was transferred to various places and he also took the deceased with him. He further

828

stated that the deceased was sick and unhealthy and was staying at Jaipur. He also stated that his daughter used to give food to the deceased. On 11.3.82 he left for Suratgarh and later he came to know about the death of the deceased. The accused examined D .Ws 1 to 3 on their behalf. D .W. 1 is a Doctor at Jodhpur. He deposed that he knew A 1 and that he was staying in his daughter’s house in Jodhpur from 15th March, 1982 to 17th March, 1982. D.W. 2 is the daughter of A 2 and the deceased aged about 13 years. She in general stated that her mother was sick and unhealthy and used to confine herself to the room and she used to give food to her. She also stated that she gave food to the deceased on 15.3.82 and that she could not give food on 16.3.82 due to her own sickness. Then on 17th and 18th March, 1982 her mother did not talk to her, therefore she returned with the food. She also stated that A 1 went to Jodhpur on the evening of 14th March and returned from Jodhpur on 18th March, 1982. On that day they found that the deceased was not talking and two ladies who came to meet the deceased, told that there was something wrong. When her grand-father A 1 returned from Jodhpur he sent for a Doctor and the Doctor after examining pronounced the deceased to be dead. D.W.2 further stated that the relations between the deceased namely her mother and grand-mother were not good. In the cross-examination she affirmed that she fell ill on 16.3.82 after coming from school and therefore could not give food to her mother. She denied the suggestion that the body was decomposed even on 16th and 17th March, 1982. D.W. 3 is the son of A 1 and brother of A 2 residing at Jodhpur. He also deposed that A 1 came to Jodhpur and stayed from 15th on- wards upto 17th March, 1982.

From the above resume of evidence it is clear that the case rests entirely on circumstantial evidence. The dead body was found in the house of A 1 and A 2, where admittedly the deceased’ was also living but she used to confine her- self to that room where the dead body was found- She was sick and unhealthy and that she was not even coming out of the room. From the evidence it is also clear that the food was given to her in the room itself and she was not even going out to answer the calls of nature. Some of the wit- nesses, no doubt, have deposed that the accused used to ill-treat the deceased. But the main question is whether A 1 and A 2 conspired, as held by the High Court and got the murder committed. From the record it is clear and it is also not disputed thatA 2 was not in the house and that A i also left Jaipur and was staying at Jodhpur with his daughter upto 17th March, 1982 and came to Jaipur only on 18th March, 1982. Therefore he was also not in the house at the time of death. There is no other evidence to

829

show that as to who could have caused the death of the deceased if it is held to be homicidal. The trial court has doubted the prosecution case that the death was homicidal. The High Court after having elaborately examined the medical evidence reached the conclusion that it was homicidal. But .even assuming that it was homicidal, there is absolute paucity of evidence, suggesting even remotely as to who could have caused the death. Though, in our view, it is not strictly necessary in this case to decide the nature of death because even assuming it ‘to be homicidal, the accused A 1 ‘and A 2 cannot be convicted unless there is other material to connect them with the crime either ,directly or indirectly. However, we shall first consider the medical evidence regarding the cause of the death.

P.W. 2 Dr. M.R. Goel examined the dead body on 19.3.82 and found 10 injuries which were ante-mortem. Many of them were in the shape of bruises and swellings. He found the dead body as highly decomposed and had reached an advanced stage of putrefaction. In his opinion the death was due to the injury on the head and pressure on the neck due to asphyxia. He was cross-examined at length. He admitted that since the brain was decomposed and was in semi-liquid condi- tion no injury therein could be traced. He also admitted that the swelling of the eye was not due to the injury.on the forehead. Coming to the injury on the neck, the Doctor stated that no injury was found on the bones of wind pipe and that portion also was decomposed. In further cross- examination he admitted that he did not make the culture of the maggots crawling on the head. He also stated that he could not say definitely whether the death in the circum- stances should’ have occurred before four days. He, however, denied the suggestion that he could not form a definite opinion. As far as this medical evidence is concerned, the trial court also considered the same at length. The learned Sessions Judge noted the details in the post-mortem certifi- cate Ex. P, 1,. There he found against the column cause of death, the Doctor has put only a question mark. It is also noted in the postmortem certificate that P.W. 2 sent a part of the neck and viscera for chemical and histopathological examination. After considering the whole evidence of the Doctor, the trial court was of the opinion that it was very difficult to say that the injuries on the head were antemor- tem. In nature and at any rate P.W. 2’s evidence has not proved beyond reasonable doubt that the death of the de- ceased was due to injuries causing asphyxia and that the death was homicidal. The High Court, on the other hand, has also noted that the death of the deceased was 4 to 8 days’ earlier ,as shown in the post-mortem certificate. The learned Judges observed thus:

830

“It is to be noticed that Dr. M.R. Goyal, who conducted the post mortem examination, is not a novice but a ‘senior Medical Jurist of the S.M.S. Hospital. According to him there was’ sub-dural hammatoma over occipital region. Bruises were found on the forehead left side …………

We have carefully examined the reasons given by the Sessions Judge for holding that the posecution has failed to prove thatit was homicidal death ….. ……………. In ‘our considered opinion, all these injuries wereanti-mortem in nature.”

The learned Judges thereafter explained away the dis- crepancies between the post-mortem and the medical evidence. We may observe that the learned Judges of the High Court have bestowed considerable part of the judgment on the aspect of medical evidence and ultimately held thus: “In substance, we are convinced that it was a case of homicidal death. We cannot accept the finding of the trial court on this aspect of the case and have got no hesitation in revers- ing it and holding that the finding is not based on just and proper appreciation of the evidence.”

We have also gone through the medical evidence carefully and we may observe that ‘we are unable to hold that the view taken by the learned Sessions Judge is altogether unreasona- ble. However, for the purpose of this appeal it may not be necessary for us to go through the details of the medical evidence. Even accepting that the death was homicidal, we cannot on that ground alone hold the appellants guilty. The proSecution has to, satisfactorily and beyond reasonable doubt, establish that the two accused conspired and pursuant to that conspiracy, the offence was committed. We ,have already given a brief resume of the evidence’ adduced on behalf Of the prosecution. We have ,noticed that both the accused were not in the house on the day the occur- rence is said ‘to have taken place even assuming that, the same took place on 14.3.82. the evidence of D.W. 2 who is the only inmate of the house that was examined and whose evidence cannot be brushed aside establishes that the occur- rence probably took place on 15th or 16th March, 1982. It is only on 18.3.82 that the dead body was discovered and it is only on that day the A 1 Came to his house, at Jaipur .from Jodhpur and A 2 admittedly was 831

away on official duty- The D.W. 2 also speaks to the same. The High Court, however, drew some inferences based on the alleged conduct of the accused and held that the two accused conspired to kill the deceased. In the first instance the High Court held that the accused has a strong motive to get rid of the accused. For this reliance is placed on the evidence of some witnesses who spoke about the cruel treat- ment meted out to the deceased by the accused. The learned Judges have also relied on some letters written by the deceased. P.W. 6, the brother of the deceased deposed that the two accused used to be angry with the deceased and they did not allow him and his family members to see the de- ceased. Reliance is placed on the evidence of P.W. 5 who spoke about the demand of money. The learned Judges of the High Court mainly relied on this evidence to infer that the accused had motive to do away with the deceased. The High Court was not prepared to place reliance on the evidence of P.W. 4 and D.W. 2 who did not support the theory of cruelty. The High Court, after considering the above evidence, ob- served as under:

“Now the question is whether in these circum- stances although there are circumstances of strong motive and of cruelty and of strong desire on the part of accused Bhagwan Swarup and Parmeshwar Swarup to get rid of Madhu, there is any further evidence of other circum- stances, by which it can be said that no other hypothesis except the guilt of the accused is possible in the present case.”

Then the learned Judges proceeded to consider the evidence of P.W. 8 and others. P.W. 8 is a local Doctor who deposed that A 1 informed him in the evening of 18.3.82 that his daughter-in-law was serious. He went and examined the de- ceased and pronounced her to be dead. P.W. 8 also deposed that the body was giving bad smell and it was also in a decomposed condition. Then the High Court relied on the evidence of P.W. 12 who stated that he received a telephonic message from A 1 stating that his daughter-in-law was at her last breathing and he must inform P.W. 5, the father. Then the High CoUrt proceeded to consider some other circum- stances which took place from 11th March onward namely A 2 leaving on official duty. The High Court suspected that A 2 designedly left Jaipur to Suratgarh and also surmised that A 2 marking his attendance in the register at Suratgarh was with a view to create evidence of alibi. Then there is reference to a letter Ex. P. 15 written by A 1 to A 2 on 18.3.82 and according to the learned Judges, this letter was an effort to show that the deceased was alive even after 11th March and according to learned. Judges Ex. P. 15 a letter of A 1

832

on the alleged death of the deceased, written by him to his son is a significant feature. This letter is dated 18th March, 1982. In that A 1 has simply informed A 2 that the deceased breathed her last and that Doctor, P.W. 8, pro- nounced her dead and that on the next day they are going ahead with cremation. This letter which is on a post-card, is the most crucial feature, according to the High Court and that its contents show that both A 1 and A 2 were guilty- conscious. We think we need not refer to the further sur- mises made by the High Court. Suffice it to say that in the rest of the entire judgment only such suspicions and sur- mises have been mentioned or drawn to reach a conclusion that A 1 and A 2 conspired.. At one stage the learned Judges observed thus:

“The more and more we read this letter Ex. P. 15 dated 18.3.82 more and more we are con- vinced that it was a case of pre-planned, pre-determined conspiracy of committing murder of Madhu, which was done on 11th March, 1982 by both accused, who were anxiously waiting the time when they could get rid of her. It is also not Without significance that Suratgath is in Ganganagar District and a far. place from Jaipur and post-card would not reach there at least before 24 hours as it reached on 20th March and further even if telephone message is sent one would take at least 12 to 18 hours to reach this place. The fact that cremation was decided for the morning and the information was sent in the night only goes to show that since the death was a result of murder, in which both the accused were in- volved, there was no occasion to wait for son, who was husband of the ill fated unfortunate lady Madhu to perform last rite or see her face at least before she is put on fire. The merciless inhuman approach exhibited by this letter is heart beating, hair raising and society lacking and consicious shocking and we are convinced that such a conduct would not have been possible but for the fact that the object of conspiracy of Bhagwan Swarup and Parmeshwar Swarup was achieved by putting an. ,end to the life of Madhu, which was done on 11th and during all this time, all that Par- meshwar and Bhagwan Swamp were being Were the unsuccessful effort to conceal the murder of helpless lady and to create a plea of alibi or pretended the natural death. We are, there- fore, convinced that these circumstances, if taken as a whole, proves beyond all reasonable doubts that Bhagwan Swarup and Parmeshwar Swarup entered into a criminal conspiracy

833

to commit the murder of Madhu and with this abode intention, common object to fulfill the object of conspiracy they committed the murder of Madhu in their house on 11th March, 1982, by causing 11 injuries on her person after they had made it sure that the son Prakash Swamp leaves for Ajmer in the morning and then Parmeshwar Swarup left for Suratgarh in the evening and Bhagwan Swarup ultimately left for Jodhpur on 14th. These were all preplanned pre-determined well calculated steps of the conspiracy to commit the murder and then to avoid its detection by these two accused, who had deep rooted patience and hatred towards the unfortunate lady Madhu, who was being treated with cruelty which started in the beginning with the demand of dowry but contin- ued later on account of various other reasons.”

We have extracted the main part of the judgment only to show that how the High Court has acted merely on suspicion. We are unable to say as to on what basis the High Court could reach the conclusion that on 11th March, 1982 itself both A 1 and A 2 committed the murder of the deceased and left the dead body. Such a conclusion should be based on acceptable evidence. There is absolutely no material that the deceased was murdered on 11th March, 1982 itself. The medical evi- dence simply states that the death could have taken place 4 to 8 days prior to post-mortem. D.W. 2, the daughter is categorical that her mother, the deceased, was alive till 16th March, 1982 and that being the nature of the evidence On record, we are unable to appreciate the above conclusion of the High Court purely based on suspicion and surmises. Further, the learned Judges of the High Court have mentioned in the above passage that both the accused conspired to commit the murder of deceased and having conspired they themselves committed the murder. In our view there is no evidence worth men-, tioning to establish these offences. Naturally in a case of this nature, the question that arises from a layman’s point of view is then who else could have committed the murder in .the house itself? Perhaps if A 1 and A 2 were present in the house on the day of homicide then the situation would have been different and ‘both of them would have been under an obligation to give an explana- tion and the-absence of a plausible explanation or giving a false explanation could have been very much incriminating against them. The same coupled with other circumstances would have perhaps brought home the guilt to the accused. But the circumstances

834

are different now. A 1 and A 2 were away from the house. The medical evidence does not at all support that the murder, assuming it to be one, could have taken place on 11th March itself as conjectured by, the High Court. If the murder has taken place some time after 11th March, then A 1 and A 2 cannot directly be connected with the murder. That being so unless conspiracy as such is established, they cannot be held liable. Then the other inmates in the house are only the mother-in-law and the children of the deceased. None of them was suspected and at any rate no one of them was charge-sheeted or tried. Therefore the question of any one of them being held responsible for the death does not arise. No doubt a grave suspicion does arise namely that some of the inmates of the house must have been responsible and an accusing finger Can be pointed against A 1 and A 2 but from 11th March onward they were not in the house. D.W. 2’s evidence clinches the .issue that the death must have been taken place only after 16th and before 18th March. It is in this situation the High Court surmised on mere suspicion that A 1 and A 2 conspired and also committed the murder on 11.3.82 itself. If the murder has been committed on 11th March itself the body would have been highly decomposed by 18th March, 1982 and would have been emitting very bad smell. One cannot imagine that the other remaining inmates of the house would have simply and silently suffered in the house without informing anybody. On the other hand D.W. 2’s evidence is different and she categorically stated that the deceased was alive upto 16th March. That appears to be natural and there is no reason whatsoever to doubt the same. As indicated supra we are inclined. to agree with the Sessions ‘Court that the medical evidence does not establish the death to be one of homicidal. At any rate there is a grave doubt in this regard. The evidence on record clearly shows that the deceased was not mentally sound. The fact that she was not coming out of the room and used the same for answering the calls of nature also would snow that there was something abnormal about her and she confined her move- ments to the four corners of the room. 15th March, 1982 was the last day when D.W. 2 served food to the deceased. There- after she did not go inside the room and on 18th March, 1982 the dead body was discovered. The evidence of P.W. 2, the Doctor, also shows that no brain injury could be traced and he also did not find any injury on the bones of wind pipe. In view of these and other admissions the trial court right- ly felt that there was a reasonable doubt about the cause of death also and accordingly acquitted the accused. From the above discussion the following important points 835

emerge; It is an undisputed case that the second accused was not present in the scene house were the occurrence took place from 11th to 20th March, 1982 and that the first accused was at Jodhpur in his .daughter’s houseI from 14.3.82 to 17.3.82 and returned to Jaipur on 18.3.82. There- fore they were not present in the house when the deceased died- The Medical Officer, P.W. 2 could not say definitely as to whether the death has occurred before four days of his examination and there is absolutely no evidence either circumstantial or direct to hold that the death took place on 11.3.82 itself as found by the High Court. The evidence of D.W. 2 who is none other than the daughter of the de- ceased and was very much in the house throughout ategorical- ly stated that her mother was alive on 15th March also. Apart from D .W. 2 the only other inmate of the house during the crucial period was the mother-in-law of the deceased who was not even charge-sheeted. The letter Ex. P-15 written by the first accused does not in any manner incriminate them and the High Court has grossly erred in holding that A 1 and A 2 entered into conspiracy merely on the basis of conjec- tures and surmises drawn from the letter. P.Ws 4, 9 and 10 have not supported the prosecution case and the remaining evidence does not in any manner implicate A 1 and A 2 and the other remaining inmate of the house, the mother-ln-law of the deceased, was not even suspected. Therefore having given our anxious and careful consideration to the facts and circumstances of the case we feel that the prosecution has miserably failed to bring home the guilt of the appellants and consequently we are inclined to allow the appeal. The accused were tried for offences punishable under Sections 302 read with Section 34, 201 and 120-B I,P.C. only and in our view the trial court rightly held that none of these charges-were proved against them.

The learned counsel for the respondent State of Rajas- than, however, submitted that the accused would atleast be liable of having committed other offences. It may be noted that the question whether they would be liable under Section 498-A or 304-B does not arise for consideration inasmuch as these provisions were not on the statute on the day of occurrence. However, A 1 was atleast under an obligation to give information about the death of the deceased since the same was unnatural. Assuming that the prosecution has not positively proved that the death was homicidal yet from the medical evidence it is clear that it was not a natural death and consequently the death should atleast be noted as one of suicide. Even in the case of suicide an offence of abetment punishable under Section 306 is inherent. There- 836

fore, even in the case of a suicide there is an obligation on the person, who knows or has reason to believe that such a suicidal death has occured, to give information. In Kali- das Achamma v. The State of A.P., S.H.O. Karimnagar. I Town P.S., [1987] 2 ALT 937 it was observed as under: “In the case of every suicide abetment is inherent. Whether ultimately it is proved or not, it is a different aspect. Abetment of suicide is an offence punishable under Section 306 I.P.C. and therefore whenever a case of suicide is there, the body cannot be disposed of without informing the Police and further as provided under Section 174 Cr. P.C. the Police have to hold an inquest Since it is an unnatu- ral death. ‘ ‘

In the instant case A 1, who reached his house on 18.3.82 knowing fully well that the deceased had already died, informed P.W. 8 that the deceased was in a serious condi- tion. Likewise he informed P.W. 12 on telephone without disclosing that the deceased was already dead. However, when P.W. 6, the brother of the deceased, came to the house where the dead body was lying, A 1 told him that the body would be cremated. To the same effect is the evidence of P.W. 13. P.W. 6, the brother of the deceased, on his own went and gave a report to the police. It can thus be seen that A 1 intentionally omitted to give the information in respect of the death of the deceased which he was legally bound to give. Section 202 I.P.C. is in the following .terms: “202. Intentional omission to give information of offence by person bound to inform–Whoever, knowing or having reason to believe that an offence has been committed, intentionally omits to give any information respecting that offence which he is legally bound to give, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.”

This Section punishes the illegal omission of those who under law are bound to give information in respect of an offence which he is legally bound to give particularly being the head of the family. Under this provision it is necessary for the prosecution to prove (1) that the accused had knowl- edge or reason to believe that some offence had been commit- ted (2) that the accused had intentionally omitted to give information respecting that offence and (3) that the accused was legally bound to give that information. Shri R.K. Jain, however, relied

837

on a judgment of this Court in Harishchandrasing Sajjansinh Rathod and AnOther v. State of Gujarat, [ 1979] 4 SCC 502 and contended that the word “Whoever” occurring in the opening part of the Section refers to a person other then the offender and has no application to the person who is alleged to have committed the principal offence- In that case the accused were tried for offences punishable under Sections 331 and 304 read with Section 34 I.P.C. in respect of the death of the deceased and were acquitted..On appeal by the State the High Court, however, convicted them under Section 202 I.P.C. A Bench of this Court while reversing the order of High Court observed thus:

“We have gone through the entire evidence bearing on the aforesaid offence under Section 202 but have not been able to discern anything therein which may go to establish the afore- said ingredients of the offence under Section 202 of the Penal Code. The offence in respect of which the appellants were indicted viz. having intentionally omitted to give informa- tion respecting an offence which he is legally bound to give not having been established, the appellants could not have been convicted under Section 202 of the Penal Code. It is well settled that in a prosecution under Section 202 of the Penal Code, it is necessary for the prosecution to establish the main offence before making a person’ liable under this section. The offence under Section 304 (Part II) and the one under Section 33.1 of the Penal Code not having been established on account of several infirmities is difficult to sustain the conviction of the appellants under Section 202 of the Penal Code. The High Court has also missed to notice that the word ‘whoever’ occurring at the

opening part of Section 202 of the Penal Code refers to a person other than the offender and has no application to the person who is al- leged to have committed the principal offence. This is so because there is no law which casts duty on a criminal to give information which would incriminate himseft. That apart the aforementioned ingredients of the offence under Section 202 of the Penal Code do not

appear to have been made out against the prosecution There is not an iota of evidence to show that the appellants knew or had reason to believe that the aforesaid main offences had been committed.”

(emphasis supplied)

From these observations it is clear that there was .no evidence to show

838

that the accused therein knew or had reason to believe that the said offences have been committed and on the other hand they were made principal offenders. In such a situation the ingredients of Section 202 can not be said to have been made out. It is in this context that the meaning of the word “whoever” has been considered. But in the instant case A 1 returned to his house where the dead body was lying on 18.3.82 and the circumstances clearly go to show that he had knowledge that the deceased died of an unnatural death. Therefore he had knowledge or atleast had reason to believe that an offence had been committed even if, at that stage; he thought that it was only a suicide. Therefore it was his bounden duty particularly as head of the family to inform the authorities. He omitted to do so. On the other hand, he went about telling that the deceased was still alive and her condition was serious. But when P.W. 6, the brother of the deceased, came to the house and enquired, A 1 told him that the body would be cremated and he intended to do so without informing the authorities. Therefore all the ingredients of Section 202 are made out against him and he clearly commit- ted the offence’ punishable under this Section at that stage. The fact that he himself was made an accused in other offences subsequently does not absolve him of his complicity in respect of the offence punishable under Section 202 I.P.C. So far A 2 is concerned, he came to the house only after the investigation commenced. Therefore his-case stands on a different footing. In the result the convictions and sentences awarded against A 1 and A 2 are set aside. A 1, however, is convicted under Section 202 I.P.C. and sentenced to undergo six months’ R.I. The appeal is disposed of ac- cordingly.

V.P.R. Appeal disposed

1

839
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DHC on Delhi Rent Control Act – S.14(1)(e)/14(6)/25B(8)

April 14th, 2012
Comment : In this case the landlord preferred a revision against the order of the decision of ARC dismissing his eviction petition on the ground that it was filed within 5 years of getting ownership of the concerned premises, which was directly barred by S.14(6). The Counsel for the landlord took the attractive plea that since the SC in MC Mehta, had ordered stoppage of commercial work in residential premises – it would work as “orders/laws” within the meaning of S.25C which allowed an exception to 14(6) insofar as permitted by legislative intervention. The Court negatived the same, holding the same to be barred until elapse of 5 years

Delhi High Court

Manoj Kumar Bhatt & Anr vs. Sewak Ram on 13 April, 2012

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ R.C.R. NO. 162 OF 2011

% Date of Decision: 13th April, 2012

! MANOJ KUMAR BHATT & ANR. …Petitioners Through: Shri Chetan Sharma, Sr. Adv.

with Ms. Garima Prashad,

Advocate

Versus

$ SEWAK RAM …Respondent ^ Through: Mr. N.K. Jain, Advocate CORAM:

* HON’BLE MR. JUSTICE P.K.BHASIN

ORDER

P.K.BHASIN, J:

This revision petition under Section 25-B(8) of the Delhi Rent Control Act, 1958(in short „the Rent Act‟) has been filed by the petitioners-landlords against the order dated 06.04.2011 passed by the learned Additional Rent Controller („the Controller‟ in short) dismissing their eviction petition filed under Section 14(1)(e) of the Rent Act against the respondent-tenant in respect of one shop no. 386, built on Plot no. 24, Khasra No. 235/35-36-39, Block BD, Ward No. 16, Joshi Road, Karol Bagh, New Delhi(hereinafter to be referred as „the tenanted shop‟).

RC. REV. NO. 162/2011 Page 1 of 13

2. The brief facts which led to filing of this petition are that the petitioners-landlords had filed an eviction petition against the respondent-tenant seeking his eviction from the tenanted shop on many grounds, one of which was the bona fide requirement of the tenanted shop. The Controller when took up the eviction petition for the first time on 01.06.2009 had passed the following order: “Heard. Issue summons of the eviction petition to the respondent in the form prescribed under Schedule-III of DRC Act on filing of PF/RC, for 20.08.09.”

Summons under Schedule III of the Rent Act are ordered to be issued to a tenant when his eviction is sought by his landlord from the tenanted premises under Section 14(1)(e) of the Act, which provision was also invoked by the petitioners-landlords in the present case. Whenever summons prescribed under Schedule III are issued as provided under Section 25-B(2) of the Rent Act in an eviction petition under Section 14(1)(e) the tenant is supposed to obtain permission of the Rent Controller to contest the eviction petition within fifteen days from the date of receipt of the summons and if that is not done the averments made in the eviction petition are to be taken as admitted by the tenant and the Controller is to pass eviction order straightaway. This is so provided under Section 25-B(4) of the Rent Act.

3. The respondent-tenant in the present case was duly served with the summons which was returnable for 20/08/2009 but he did not file any application seeking leave of the Controller to contest the eviction petition within 15 days and instead presented his written statement on 07/08/2009. On 20.08.2009 the learned Controller was on leave and so

RC. REV. NO. 162/2011 Page 2 of 13 the ahalmad of the Court fixed the case for 24.10.2009 after recording in the order-sheet that written statement had already been filed. On 24.10.2009 the following order was passed by the Controller: “Written submissions filed on behalf of the Petitioner on 23.10.2009. it is submitted by the proxy Counsel for the Respondents that main Counsel is not available.

At request put up on 19.12.2009 for filing of

rejoinder/arguments on the written submissions.”

It appears that instead of writing „written statement‟ „written submissions‟ came to be typed in the proceedings of 24 th October. Thereafter, the petitioners raised a grievance before the Controller that since the respondent-tenant had not sought leave to contest the eviction petition his written statement should not have been taken on record and eviction order should have been passed straightaway. From the side of the respondent-tenant it was claimed that since the petitioners had filed the eviction petition on many grounds available to them under the Rent Act ordinary summons should have been issued and wrongly the same had been issued under Schedule III as if the petition was only under Section 14(1)(e) of the Rent Act. That is evident from the following the proceedings of 23.03.2010 recorded by the learned Controller;-

“Ld. Counsel for the petitioner submits that the in the present petition, application for leave to defend has not been filed by the respondents and therefore, respondents are liable to be evicted.

Ld. Counsel for the respondents submits that the present petition is not covered under the summary proceedings and that is why application for leave to defend was not filed and WS was filed because the present petition has been filed under Section 14(1)(a) read with Sections 6A & 7 (2), 14 (1)(b), 14(1)(j) and 14(1)(e) of The Delhi Rent Control Act,

RC. REV. NO. 162/2011 Page 3 of 13 1958 and he seeks more time for submitting relevant authorities on this point.

Put up for further arguments, for 11.05.10.”

4. Then vide order dated 06.04.2011 the learned Controller not only rejected the objection of the petitioners-landlords that written statement should not have been accepted but the eviction petition itself was also rejected as far as the ground under Section 14(1)(e) of the Rent Act was concerned for the reason that the same was not maintainable in view of the bar under Section 14(6) of the Rent Act it having been filed within a period of five years from the date of the purchase of the property in question by the petitioners from its erstwhile owners. The Controller however decided to proceed with the eviction petition on other grounds which had also been invoked by the petitioners-landlords. It was also observed by the controller that earlier summons as prescribed in Schedule III of the Rent Act were wrongly and inadvertently issued.

5. Feeling aggrieved by the order dated 06.04.2001, the petitioners-landlords filed this revision petition.

6. It was argued by Shri Chetan Sharma, learned senior counsel for the petitioners, that the order dated 06.04.2011 is not in accordance with law and suffers from a serious infirmity in that the learned Controller had no option but to pass an eviction order in the matter on the failure of the respondent-tenant to apply for leave to contest after he had been served with the summons requiring him to apply for leave to contest within fifteen days. It was also argued that with the issuance

RC. REV. NO. 162/2011 Page 4 of 13 of the summons under Schedule III of the Rent Act it became clear that the learned Controller had confined the eviction petition only to the ground of bona fide requirement covered under Section 14(1)(e) and there was nothing wrong in that decision of the Controller and the petitioners had also not raised any grievance that why their petition had been confined only to the ground of bona fide requirement of the tenanted shop. Therefore, there was no occasion for taking on record the written statement of the respondent-tenant. The learned senior counsel further argued that as far as the bar under Section 14(6) of the Rent Act, because of which the Controller dismissed the eviction petition qua the ground under Section 14(1)(e), is concerned, there was no dispute that the property in question having been purchased by the petitioners-landlords within a period of five years prior to the filing of the eviction petition on the ground of bona fide requirement in normal course would not have been maintainable but in the present case the petitioners had also claimed that that bar was not attracted here since the petitioners were claiming the benefit of the exception to that bar as provided under Section 25-C(1) of the Rent Act but the learned Controller had not even considered that part of the case of the petitioners and had straightaway dismissed the eviction petition based on the ground of bona fide requirement and that has gravely prejudiced the petitioners.

7. Elaborating his submission on the applicability of Section 25- C(1) of the Rent Act, the learned senior counsel for the petitioners had submitted that the petitioners had purchased the tenanted shop as well as three others shops in the same property of which the shop in

RC. REV. NO. 162/2011 Page 5 of 13 occupation of the respondent was a part and those four shops were adjoining to their residence at Joshi Road where they have been carrying on their business but the business had to be stopped in the residential premises in view of some order passed by the Hon‟ble Supreme Court in the case of “M.C. Mehta Vs. Union of India & Ors.”, W.P.(Civil) No.4677/1985, whereby commercial activities in the residences were ordered to be stopped. In this regard my special attention was drawn to the following averments made in the eviction petition:-

“18-(a)D. Because besides above noted grounds, an overriding ground for eviction under section 14(1)(e) as modified by the Supreme Court of India in the case of Satyawati Sharma Vs Union of India decided on 16-04-08 is that the petitioners are bona fide registered business men & the shop has been purchased for there bona fide requirement & need for themselves & for their family members for expanding business/commercial activities which are not permissible in the residential

accommodations under Master Plan 2021, Delhi. Hence the petitioners therefore seek the eviction & recovery of possession on the basis of summary trial by exercising the power conferred under procedure & provisions contained in sections 25A to 25C of the Chapter III A of The Delhi Rent Control Act, 1958 so as to meet the ends of justice.

19(a). That the four shops of Municipal Corporation properties nos. 16/384, 16/385, 16/386 and 16/387 were built on Plot No.24 Khasra No.235/35-36-39 Block BD Ward No.16 abutting Joshi Road Karol Bagh, New Delhi- 05 regarding which eviction against occupants is sought by the petitioners alongwith recovery of possession to the petitioners……

………………………….

…………………………..

(j).. That on the other hand, the petitioners of this petition being the abutting owner/resident of the same plot no.24 &

RC. REV. NO. 162/2011 Page 6 of 13 are bonafide businessmen and regular tax payers of their business were facing acute shortage of suitable commercial accommodation for their growing needs & requirements of expanding business activities such as Jewellery Shop & Auto Spare Parts Shop etc. which are not allowed in the residential houses under Master Plan 2021 of Delhi. After carefully studying the provisions of The Delhi Rent Control Act, 1958 read with the spirit of modified provisions of section 14(1)(e) by the Honourable Supreme Court of India in case of Satyawati Sharma Vs Union of India & Others decided on 16-04-08 in Appeal(Civil) 1897/2003, the petitioners purchased the aforesaid four shops.

8. Mr. Sharma had, however, very fairly not disputed that if an eviction petition under Section 14(1)(e) is on the face of it not maintainable because of the bar under Section 14(6) and no benefit of Section 25-C(1) is claimed by the landlord then the same could be rejected by the Controller even if the tenant had failed to apply for leave to contest the eviction petition.

9. Mr. N.S.Jain, learned counsel for the respondent-tenant on the other hand fully supported the decision of the Controller rejecting the eviction petition based on the ground of bona fide requirement because of the bar under Section under Section 14(6) of the Rent Act and argued that the learned Controller had rightly observed that he had committed a mistake initially in issuing the summons under Schedule III of the Rent Act when the eviction petition was filed on many grounds available to the petitioners in the Rent Act and it had to be treated as an ordinary eviction petition not to be tried as per the special procedure under Section 25-B of the Rent Act.

RC. REV. NO. 162/2011 Page 7 of 13

10. After hearing arguments from both the sides the matter was earlier reserved for orders but before orders could be pronounced in some other revision petitions filed by unsuccessful landlords a point had arisen as to the maintainability of revision petition under Section 25-B(8) of the Rent Act at the instance of a landlord. So, order was not passed by me and it was decided to give opportunity to the parties in the present case also to address the Court, if they so desired, on this aspect. Counsel for the petitioner made submissions but no submissions were made from the side of the respondent perhaps because he had not raised any such objection earlier regarding the maintainability of this revision petition.

11. The point about the maintainability of such a revision petition under Section 25-B(8) arose in view of a decision of the Supreme Court in “Major D.N. Sood v. Shanti Devi 1997(10) SCC 428 wherein it was held that a revision petition at the instance of a landlord is not maintainable. A Division Bench of this Court in the case of “R.S.Bakshi vs H.K.Malhari & anr.”, 2002(62) DRJ 272 had held even after noticing the decision of the Apex Court in Maj. Sood‟s case(supra) that a revision petition at the instance of a landlord is also maintainable. The Division Bench decision of this Court in R.S.Bakshi‟s case(supra) had held the Supreme Court‟s decision in Maj. Sood‟s case(supra) to be per incuriam because of the fact that earlier three Judges Bench judgment of the Supreme Court in “Vinod Kumar Chaudhary vs. Smt. Narain Devi“:AIR 1980 Supreme Court 2012, wherein it was held that a revision petition even at the

RC. REV. NO. 162/2011 Page 8 of 13 instance of an unsuccessful landlord is maintainable under the Rent Act, was not brought to the notice of the two Judges Bench which had given the judgment in Major Sood‟s case. In Vinod Kumar‟s case the landlord had lost after trial, like in the present case. So, in view of the Division Bench decision of this Court given after considering the two conflicting judgments of the Supreme Court to the effect that such a revision petition is maintainable, I shall now proceed further to consider the petition on its merits.

12. Section 14(6) of the Rent Act reads as under:-

“Where a landlord has acquired any premises by transfer, no application for recovery of possession of suit premises shall lie under sub-section (1) on the grounds specified in clause (e) of the proviso thereto unless a period of 5 years has elapsed from the date of acquisition.”

and Section 25-C(1), benefit of which is being claimed by the petitioners, reads as follows:-

“25C (1) Nothing contained in sub-section (6) of section 14 shall apply to a landlord who, being a person in occupation of any residential premises allotted to him by the Central Government or any local authority is required by, or in pursuance of, an order made by that Government or authority to vacate such residential accommodation, or in default, to incur certain obligations, on the ground that he owns a residential accommodation either in his own name or in the name of his wife or dependent child in the Union territory of Delhi.”

13. With the issuance of the summons prescribed under Schedule III of the Rent Act it is clear that the Controller had limited the eviction petition of the landlord to Section 14(1)(e) of the Rent Act

RC. REV. NO. 162/2011 Page 9 of 13 only to which the landlords also did not have any objection. The Controller could have very well done that. It cannot be said that he had committed any mistake in ordering issuance of summons only in respect of the ground of bona fide requirement. I am also in full agreement with the submission of the learned senior counsel for the petitioners that once having ordered issuance of summons under Schedule III to the Rent Act the learned Controller should not have taken on record any written statement from the side of the respondent- tenant. That course of action is not permissible in an eviction petition which has been treated as a petition under Section 14(1)(e) of the Rent Act. The respondent-tenant‟s only right is to seek permission from the Controller to contest the eviction petition on whatever grounds he wants to contest it. Without seeking the permission of the Controller the tenant cannot decide for himself that the eviction petition as framed could not be proceeded with only under Section 14(1)(e) and consequently he could file the written statement straightway. If this kind of practice is accepted by the Controllers then that would mean that every tenant would be at liberty to present a written statement and then defend the eviction petition without any prior permission from the Controller. That is not at all permissible and should not have been allowed to be done by the Controller.

14. In the present case, the learned Controller should have taken up the eviction petition for considering whether because of the failure of the respondent-tenant to seek leave to contest eviction order deserved to be passed straightway or for any other reason the same could not be

RC. REV. NO. 162/2011 Page 10 of 13 passed. Since in the present case admittedly the eviction petition on the ground of bona fide requirement had been filed by the petitioners within a period of 5 years from the date of purchase of the property in question by them the same was obviously not maintainable in view of the bar contained under Section 14(6) of the Rent Act, which position was not disputed even by the learned senior counsel for the petitioners during the course of hearing of this revision petition. Therefore, the learned Controller was fully justified in dismissing the eviction petition instead of passing an eviction order against the respondent- tenant when on the face of it the eviction petition was not maintainable.

15. However, as noticed already, learned senior counsel for the petitioners had submitted that despite the fact that the eviction petition under Section 14(1)(e) was barred at the time when it was filed in view of the bar under Section 14(6) of the Rent Act it could still not be dismissed as under Section 25-C(1) of the Rent Act there is an exception provided in favour of the landlord and that exception had been invoked by the petitioners in the present case by pleading that since they were carrying on their business in residential premises and the Hon’ble Supreme Court had in M.C. Mehta‟s case (supra) directed closure of commercial activities in residential premises the bar under Section 14(6) was not attracted but this plea taken by the petitioners had been totally ignored by the learned Controller while rejecting their eviction petition. Therefore, learned senior counsel contended, the matter deserved to be sent back to the Rent Controller to examine the

RC. REV. NO. 162/2011 Page 11 of 13 said plea of the petitioners and then to take any decision in respect of the bar under Section 14(6) of the Rent Act.

16. Though at first blush these submissions made by the learned senior counsel appeared to be quite attractive but when I went through the eviction petition minutely the same have become totally meritless in view of the fact that the ingredients of Section 25-C(1) of the Rent Act were totally missing from the eviction petition. I have already re- produced Section 25-C(1) of the Rent Act. It is not the case of the petitioners that they had been allotted any residential accommodation by the Government and they had been required to vacate the same which had necessitated seeking eviction of their own tenant from the tenanted shop which undisputedly had been purchased by them within a period of 5 years from the date of filing of the eviction petition. The plea taken is that since the Hon’ble Supreme Court in M.C. Mehta‟s case (supra) had directed shifting of all commercial activities from the residential properties that direction of Hon’ble Supreme Court should be treated at par with an order of the Government as contemplated under Section 25-C(1) let that plea cannot be accepted. The language of Section 25-C(1) is quite clear and unambiguous and this Court cannot introduce into that section what the petitioners want to be introduced therein. In case the Hon’ble Supreme Court had directed the closure of commercial activities from residential premises and the petitioners were going to be affected by that decision of the Hon’ble Supreme Court then the only option available to them was to comply with the direction of the Hon’ble Supreme Court and shift their

RC. REV. NO. 162/2011 Page 12 of 13 business activities somewhere else but the remedy of seeking eviction of respondent-tenant was certainly not available to them on that ground at least before the expiry of five years period from the date of their acquiring the tenanted shop.

17. This revision petition is, therefore, dismissed. Since I have already observed that the learned Controller had treated the eviction petition as one under Section 14(1)(e) only by directing issuance of summons prescribed under Schedule III to the Rent Act it could not have been thereafter treated as an eviction petition under other grounds which were not even pressed into service even by the petitioners after 01st June, 2009. Therefore, now the entire eviction petition would also stand rejected but it is made clear that in case the petitioners would still like to seek eviction of respondent-tenant on other grounds which had been initially taken by them in their eviction petition they would be at liberty to do so by filing fresh eviction petition(s).

P.K. BHASIN,J

April 13, 2012
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Arbitrary Allotment of Petrol Pumps …SC

April 4th, 2012
Though overruled by SC in a later decision in 1999 – this decision is highly public oriented – wherein the ministers, rightly, were held to be repositories of public trust, liable for breach of trust in case of arbitrary allotment of petrol pumps.

Common Cause A Regd. Society vs Union Of India And Ors on 4 November, 1996

Author: S L.J.

Bench: K Singh, F Uddin

PETITIONER:

COMMON CAUSE A REGD. SOCIETY

Vs.

RESPONDENT:

UNION OF INDIA AND ORS.

DATE OF JUDGMENT: 04/11/1996

BENCH:

KULDIP SINGH, FAIZAN UDDIN

ACT:

HEADNOTE:

JUDGMENT:

O R D E R

The question before this Court in Common Cause Vs. Union of India and Ors. Writ Petition (C) No. 26/95 was whether the allotments of retail outlets for petroleum products (Petrol Pumps) were illegal and as such liable to the quashed. This Court by the judgment dated September 25, 1996 came to the conclusion that the allotments made by Capt. Satish Sharma were arbitrary, discriminatory, mala fide, wholly illegal and as such were liable to be quashed. This Court reached the said findings on the following reasoning :

“All the 15 allotments – discussed

above – have been made by the

Minister in a stereotyped manner.

The Petroleum Ministry. There is

no receipt – entry on any of the

applications. The applicants seem

to have approached dealt with in

any of the branches of the

Ministry. There is nothing on the

record to indicate that the

Minister kept any criteria in view

while making the allotments. How

the applicants came to know about

the availability of the petrol

pumps is not known. No

advertisement was made to invite

the applications. There is nothing

on the record to show that any

other method of the inviting

applications was adopted. There is

no indication in the allotment-

orders or any where in the record

to show that the Minister kept any

guidelines in view while making

these allotments. The allotments

have been made in a cloistered

manner. The petrol pumps – public

property – have been doled out in a

wholly arbitrary manner.” …..

“All these allotments are wholly

arbitrary nepotistic and are

motivated by extraneous

consideration.”

……………………………..

“We have no hesitation in holding

that Capt. Satish Sharma in his

capacity as a Minister for

Petroleum and Natural Gas

deliberately acted in a wholly

arbitrary and unjust manner. We

have no doubt in our mind that

Capt. Satish Sharma knew that the

allottees were relations of his

personal staff, sons of Ministers,

Selection Boards and the members of

the Oil Selection Boards

themselves. The allotments made by

him were wholly mala fide and as

such cannot be sustained.

We are further of the view that

Capt. Satish Sharma acted in a

wholly biased manner inasmuch as he

unfairly regarded with favour the

cases of 15 allottee before him.

The relevant circumstances

available from record and discussed

by us leave no manner of doubt in

our mind that Capt. Satish Sharma

deliberately acted in a biased

manner to favour these allottees

and as such the allotment orders

are wholly vitiated and are liable

to be set aside.”

“Mr. Satish Sharma has acted in

utter violation of the law laid-

down by this Court and has also

infarcted Article 14 of the

Constitution of India. As already

stated in a minister in the

Central Government is in a position

of a trustee in respect of the

public property under his agencies

are a kind of wealth which the

Government must distribute in a

bona fide manner and in conformity

with law. Capt. Satish Sharma has

betrayed the trust reposed in him

by the people under the

Constitution.”

One of the directions issued by

this Court was an under :

“5. Capt. Satish Sharma shall show-

cause within two weeks why a

direction be not issued to the

appropriate police authority to

register a case and initiate

prosecution against him for

criminal breach of trust or any

other offence under law. He shall

further show-cause within the said

period why he should not, in

addition, be made liable to pay

damages for his mala fide action in

allotting petrol pumps to the above

mentioned fifteen persons.”

Pursuant to the above quoted direction, a show cause notice was issued to Capt. Satish Sharma. He has filed affidavit in reply to the show cause notice. We have heard Mr. Salve, learned counsel appearing for Capt. Satish Sharma. There are two parts of the directions quoted above. This Court has called upon Capt. Satish Sharma to show cause why a direction be not issued to the appropriate police authority to register a case and initiate prosecution against him for criminal breach of trust or any other offence under law.

The findings of this Court, quoted above, and the conclusion reached in the Common Cause case, leave no manner of doubt that an investigation by an independent authority is called for in this case. We, therefore, direct the Central Bureau of Investigation (CBI) to register a case against Capt. Satish Sharma in respect of the allegation dealt with and the findings reached by this Court in the Common Cause case. The CBI shall hold investigation and proceed in accordance with law. There shall be no limit on the power, scope and sphere of investigation by the CBI. We, however, make it clear that the CBI shall not be influenced by any observations made by this Court or the findings reached in Common Cause case, for reaching the conclusion as to whether any prima facie case for prosecution/trial is made out against Capt. Sharma. It shall have to be decided on the basis of the material collected and made available with the CBI as a result of the investigation. We direct the CBI to complete the investigation within three months of the receipt of this order. The CBI shall file interim report to indicate the compliance of this order. This shall be to indicate the compliance of this order. This shall be done by January 20, 1997 and this matter shall be listed on January 22, 1997 before a Bench of which Mr. Justice Faizan Uddin is a member.

Mr. Harish Salve has addressed elaborate arguments on the question of damages. We place on record our appreciation for Mr. Harish Salve for assisting this Court in a very fair and independent manner.

According to Mr. Salve this is not a case where compensatory or exemplary damages should be imposed. According to him nominal damages would meet the ends of justice.

This Court has authoritatively laid down in Nilabati Behera (Smt.) Alias Lalita Behera Vs. State of Orissa and Ors. 1993 (2) SCC 746 that damages can be awarded by this Court in proceedings under Article 32 of the Constitution of India. Mr. Salve has taken us through the Privy Council judgment in Rookes Vs. Barnard and Ors. 1964 Appeal Cases 1129. Lord Devlin in his opinion has held that exemplary damages can be awarded for “oppressive, arbitrary and unconstitutional action by the servants of the Government”. Mr. Salve has also taken us through the judgment of the Court of Appeal in A.B. and Ors. Vs. South West Water Services Ltd. 1993 Queen’s Bench 507. Broome’s case elaborately discussed and relied upon in this judgment. It would be useful to quote the relevant part of the opinion by Stuart-Smith L.J.

“This first category is “oppressive, arbitrary or unconstitutional action by the servants of the government.” It is common ground that this category of persons is not limited to the servants of central government, but includes servants of local government and the police. In Broome v. Cassell & Co. Ltd. (1972) A.C. 1027, 1077- 1078, Lord Hailsham of St. Marylebone L.C. said : “… I would be surprised if it included only servants of the Government if the strict sense of the word. It would, in my view, obviously apply to the police … and almost as certainly to local and other officials exercising improperly rights of search or arrest without warrant, and it may be that in the future it will be held to include other abuses of power without warrant by persons purporting to exercise legal authority.”

Lord Reid said, at pp. 1087-88 :

“With regard to the first I think that the context shows that the category was never intended to be limited to Crown servants. the contrast is between “the Government” and private individuals. Local government is as much government as national government, and the police and many other persons are exercising governmental functions. It was unnecessary in Rookes v. Barnard to define the exact limits of the category. I should certainly read it as extending to all those who by common law or statute are exercising functions of a governmental character.” Lord Wilberforce said at p.1120 :

“There is not perhaps much difficulty about category 1 : it is well based on the cases and on a principle stated in 1703 – ‘if public officers will infringe men’s rights, they ought to pay greater damages than other men to deter and hinder others from the like offences:’ Ashby v. White (1703) 2 Id. Raym. 938, 956, per Holt C.J. Excessive and insolent use of power is certainly something against which citizens require as much which I understand your Lordships to endorse would correspond with Holt C.J.’s ‘public officers’ and would partly correspond with modern needs.” Lord Diplock said of the first category, at p.1130 : “It would embrace all persons purporting to exercise powers of government, central or local, conferred upon them by statute or at common law by virtue of the official status or employment which they held.”

In the said case Thomas Bingham M.R. further elaborated the concept in the following words : “In the first category there had

been what he variously described as

an “arbitrary and outrageous use of

executive power:’ (see p. 1223) and

” oppressive, arbitrary or

unconstitutional action by the

servants of the government:” see p.

1226. Minute textual analysis of

these expressions is inappropriate.

This was a judgment, not a statute.

But there can be no doubt What

Lord Devlin was speaking about. It

was gross misuse of power,involving

tortious conduct, by agents of

government. According to the

traditional classification of the

law of tort, such misuse of power

could give rise to any one of a

number of causes of action, which

Lord Devlin was not at pains to

identify.”

The Court of Appeal also relied upon the judgment of the House of Lords in Broome Vs. Cassell & Co. Ltd. 1972 Appeal Cases 1027.

We are of view that the legal position that exemplary damages can be awarded in a case where the action of a public servant is oppressive, arbitrary or unconstitutional is unexceptionable. The question for consideration, however, is whether the action of Capt. Satish Sharma makes him liable to pay exemplary damages. In view of the findings of this Court in Common Cause Case – quoted above – the answer has to be in the affirmative. Satish Sharma’s actions were wholly arbitrary, mala fide and unconstitutional. This Court has given clear findings to this effect in the Common Cause case. We, therefore, hold that Capt. Satish Sharma is liable to pay exemplary damages.

We have heard Mr. HN Salve on the question of quantum. Mr. Salve has vehemently contended that Capt. Sharma was a part of the system which was operating before his joining as a Minister. According to him the types of wrongs were being committed even earlier on the assumption subjective satisfaction. He has further contended that since the concept of absolute liability of public servants for misfeasance has been of recent origin in this country even while awarding exemplary damages leniency should be shown. There is some plausibility in the contentions raised by Mr. Salve. After examining all the facts and circumstances of this case and giving thoughtful consideration to this aspect, we direct Capt. Satish Sharma to pay a sum of Rs. 50 lac as exemplary damages to the Government Exchequer. Since the property with which Capt. Sharma was dealing was public property, the Government which is “by the people” has to be compensated. We further direct Capt. Sharma to deposit the amount with the Secretary, Ministry of Finance, Government of India within nine months from today. The amount if not paid, shall be recoverable as arrears of land revenue.
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Revision by Landlord against ARC’s adverse judgment – is maintainable

March 31st, 2012
Comment : In this case the issues that arose for consideration were “Whether a landlord can file a revision u/s 25B(8) of the Delhi Rent Control Act against a judgment wherein he loses his case” The Court held yes – in light of Vinod Kr. Choudhary v. Narain Devi Taneja (1980) SC 3 judges Bench.

Delhi High Court

# Krishna Devi(Since Dead) & Anr vs $ Kender Pal Singh on 28 March, 2012

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% C.R.P. 972/1998

+ Date of Decision: 28th March, 2012

# KRISHNA DEVI(SINCE DEAD) & ANR. ….Petitioners ! Through: Mr. Sachin Mittal & Ms. Vijeta Kumari, Advocates

Versus

$ KENDER PAL SINGH …..Respondent Through: Dr. L.S. Chaudhary & Mr. Ajay

Chaudhary, Advocates

CORAM:

* HON’BLE MR. JUSTICE P.K.BHASIN

ORDER

P.K.BHASIN, J:

This petition under Section 25-B(8) of the Delhi Rent Control Act, 1958(“the Rent Act” in short) was filed by one Smt. Krishna Devi, who died during the pendency of this petition and her legal heirs were brought on record, and one of her sons Shri Sat Narain against the order dated 28.07.1998 passed by the learned Additional Rent Controller(in short „the Controller‟) dismissing their eviction petition filed against the respondent herein under Section 14(1)(e) of the Rent Act in respect of a part of house no.1/40, Punjabi Bagh, New Delhi (hereinafter to be referred as “the tenanted premises”).

C.R.P. 972/1998 Page 1 of 9

2. In the eviction petition it had been claimed that the deceased petitioner Smt. Krishna Devi was the owner of property no.1/40, Punjabi Bagh and two room set on the first floor of this house was let out to the respondent-tenant in the year 1980 by her through her son, petitioner no.2 who had all along been dealing with the respondent as the landlord. The eviction of the respondent was sought on the ground that the tenanted premises in his occupation were required bona fide for the residence of the deceased petitioner and her other family members dependent upon her. The family of the deceased petitioner was of twenty three members including herself, her husband, and her three sons who were dependent on her for residence and her grandchildren while the accommodation available with her in the house no.1/40 which was the only property owned by her, was of five rooms only. One of her sons was living separately in a rented house because of paucity of accommodation in the house in question she wanted him also to stay with other family members together. Petitioner no.2 was also living separately but he was not dependent upon her.

3. The respondent-tenant had contested the eviction petition after obtaining necessary permission from the Controller as provided under Section 25-B(4 & 5) of the Rent Act. In his written statement he had taken the plea that there was no relationship of landlord and tenant between himself and the deceased petitioner Smt. Krishna Devi and that the tenanted premises had actually been let out to him by her son Sat Narain, petitioner no. 2 and since his said landlord was not

C.R.P. 972/1998 Page 2 of 9 claiming that he required the tenanted premises for his residence the eviction petition was not maintainable. The respondent had further pleaded that under the family partition in respect of house in question the portion under his tenancy tenanted it was petitioner no.2 who had become its owner but and the eviction petition was filed collusively by the mother and son together in order to evict the respondent by pressing into service the requirement of the mother showing her to be the owner.

4. The learned Controller after examining the evidence adduced by the parties dismissed the eviction petition vide impugned order. The relevant portions from that order where the contentions of the parties were discussed and findings were given are re-produced below:-

“……………….The petitioner no. 1 has submitted that the premises in the suit were now required for residence of herself and their family members dependent upon her. She has stated that her family consisted of herself, her husband, her sons and their families. It is stated that the petitioner no. 1 has only one house namely 1/40 Punjabi Bagh where she had accommodation consisting of 2 rooms, store, kitchen, bath room on the ground floor. Similar accommodation on the first floor and barsati on the second floor. The first floor portion was with the respondent. the petitioners have stated that the petitioner no. 2 had his own house at CP-211 Pitampura New Delhi and was not dependent upon the petitioner for accommodation. However, she claims that her family consisted of her husband, one son having his wife and 3 grown up children aged about 21, 18 and 14 years, another son having his wife and 4 children aged 17, 15, 12 and 11 years, the third son having his wife and 3 children aged 14, 13 and 6 years and the fourth son having his wife and 3 children of the age of 8, 6 and 1 ½ years. Thus the petitioner has in all 23 members dependent upon her for the purpose of accommodation and the accommodation available with her comprises of only 5 rooms, 2 kitchens and a store. It is stated that the first son of the petitioner was residing in a rented accommodation at B-137, Ashoka Enclave, Peera Garhi Chowk @ Rs. 1,000 and he

C.R.P. 972/1998 Page 3 of 9 could not be accommodated with the petitioner no. 1 on account of shortage of space. The petitioners have therefore sought the respondents eviction so that they could properly accommodate the said son of petitioner no. 1 living in a rented house as he also was desire to reside with his old parents…………….

3. After leave to defend was granted to the respondent he filed his written statement wherein he has raised preliminary objections that there was no relationship of landlord and tenant between himself and petitioner no. 1 as the premises had been let out by petitioner no.2……………..

7. The petitioners have placed on record a certified copy of the sale deed in favour of petitioner no.1 as Ex. AW1/2. It is also the admitted case that the petitioner no. 2 had let out the premises and was thus the landlord. It is not that only a landlord can institute a petition u/s 14(1)(e). In fact, their requirement as otherwise and ownership is an important ingredient of Sec. 14(1)(e) which has to be fulfilled before petitioner can seek the eviction of a tenant from the tenanted premises. The petition is therefore maintainable in the light of Ex AW1/2 the sale deed in favour of petitioner no. 1.

8. The petitioners stated in the petition that the premises had been let out for residential purposes. No question was put to AW1 that the premises had been let out for residential cum commercial purposes……………….Thus, it is clear that the purpose of letting is residential and not residential cum commercial as claimed in the written statement.

9. ………………. The petition specifically mentions the need of the first son of petitioner no. 1 who was residing in a rented house at D-137, Ashok Enclave paying a monthly rent of Rs. 1,000/-. In the petition it was claimed that it was necessary to evict the respondent in order to accommodate this son of petitioner no. 1. AW2 is Sh. K.R. Goel the son in question. He has stated that whereas his brothers Hari Ram Goel, Ram Bhaj Goel and Madan Lal Goel were residing with petitioner no. 1 as they did not have any residential house, he was living in house no. A-207 Meera Bagh, Rohtak Road, Delhi as a tenant………. for the purpose of residence he was dependent upon his mother…………….He further states that his mother being aged 78 years and not keeping good health, desired that he lived with her after the portion was vacated by the respondent. This witness was not cross examined on material aspects despite opportunity being given to the respondent. However, the respondent has examined RW2 Sh. Satya Vrat Astt. Zonal Inspector MCD House Tax Department who produced the record relating to property No. A-207, Meera Bagh,

C.R.P. 972/1998 Page 4 of 9 New Delhi. This is the same property in which AW-2 Sh. K.R. Goel claims he was residing as a tenant. He had also stated that the landlord was one Shiv Kumar who had issued the rent receipts Ex. AW2/1-4. However, from the testimony of RW2 it is clear that Shiv Kumar had no concern with the property No. A-207. The witness has testified that as per the record the property A-207 was a 200 sq. yds. plot on which a 2 storeyed building (ground and first floor) had been constructed and was meant for residential house. He has deposed that as per the record the said lease was in favour of Sh. Govind Sri Ram Vohra. It is stated that thereafter the name of Sh. K.R. Goel as general power of attorney of Vijay Vohra has been entered. It is stated by RW2 that in the year 1990, notice u/s 125 (for assessment) was given to sh. Vijay Vohra and in 1994 his attorney Sh. Kanshi Ram Goel was called for and a decision was taken after which the house tax bills have been issued to Vijay Vohra C/o Sh. K.R. Goel. It was urged on behalf of the petitioner that the witness in cross-examination had admitted that the original value was assessed in the name of Vijay Vohra who was the owner of the property in question till date. The Ld. Counsel submitted that merely because the bills were being sent to Vijay Vohra C/o K.R. Goel would mean nothing as anybody could pay the house tax and the name of Vijay Vohra still stated in the records as owners of the property A-207 Meera Bagh. There would have been some force in this submission of the learned counsel for the petitioner but for the fact that ordinarily house tax bills are not raised in the name of owner as C/o his tenant. Besides, Sh. K.R. Goel is described in the tax record as the general attorney of the owner Vijay Vohra and a copy of the power of attorney and an agreement to sale were placed on the record of the house tax department. Thus, clearly the occupation of AW2 K.R. Goel at A-207 Meera Bagh is not in the capacity of tenant but something more, even if it is admitted that an agreement to sale does not transfer title. RW2 himself stated that till such time transfer duty was not paid the tax would not be assessed in the name of K.R. Goel. This evidence is sufficient to knock the bottom out of the petitioner’s case setting out the need of K.R. Goel AW2.

10. The petitioner no. 1’s case has been that once the respondent vacated his portion AW2 K.R.Goel would come to occupy it as he was dependent upon her for residence. However, in the light of the testimony of RW2 which discloses that Sh. K.R. Goel had entered into an agreement to purchase A-207 Meera Bagh and certain documents have been executed on 16.7.90 (general power of attorney) and 10.1.92 (agreement to sale) it is clear that he had his own property in which he was residing as a de facto owner though no title deeds have been executed in his favour. He cannot be treated as being dependent on petitioner no. 1 for residence. Thus, the petitioners have failed to

C.R.P. 972/1998 Page 5 of 9 prove their bona fide need for the tenanted premises as regards the specific case of the need of Sh. K.R. Goel.

11. The petitioner no. 1 has also submitted that her other children 3 sons along with their grown up children were also dependent upon her for residence. However, in the testimony of AW 1 their specific need has not been stated as to which of the other sons required the tenanted premises which consisted of 2 rooms on the first floor. The evidence does not show which son and his family is in possession and use of which portion of the 6 rooms (including the new room constructed on the third floor) so that it could be determined as to whether or not their need is made out. However, as pointed out earlier both in the petition as well as in the evidence the case set up by the petitioner no. 1 is the need of K.R. Goel who was allegedly residing in a tenanted premises and whose presence petitioner no. 1 desired in the premises to be vacated by the respondent, which case stands disproved.

12. Thus, the petitioners have failed to prove their case of bona fide need of the tenanted premises………………………………………”.

5. During the course of hearing a point had arisen as to the maintainability of a revision petition under Section 25-B(8) of the Rent Act at the instance of a landlord whose eviction petition filed against the tenant on the ground of bona fide requirement is rejected by the Rent Controller. That doubt about the maintainability of such a revision petition under Section 25-B(8) arose in view of a decision of the Supreme Court in “Major D.N. Sood v. Shanti Devi 1997(10) SCC 428 wherein it was held that a revision petition at the instance of a landlord is not maintainable. That was a case where revision petition was filed by the landlord against the order of the Controller granting leave to contest the eviction petition to the tenant. In the present petition eviction petition has been dismissed after trial.

A Division Bench of this Court in the case of “R.S.Bakshi vs H.K.Malhari & anr.”, 2002(62) DRJ 272 had held even after

C.R.P. 972/1998 Page 6 of 9 noticing the decision of the Apex Court in Maj. Sood‟s case(supra) that a revision petition at the instance of a landlord is also maintainable. The Division Bench decision of this Court in R.S.Bakshi‟s case(supra) had held the Supreme Court‟s decision in Maj. Sood‟s case(supra) to be per incuriam because of the fact that earlier three Judges Bench judgment of the Supreme Court in “Vinod Kumar Chaudhary vs. Smt. Narain Devi“:AIR 1980 Supreme Court 2012, wherein it was held that a revision petition even at the instance of an unsuccessful landlord is maintainable under the Rent Act, was not brought to the notice of the two Judges Bench which had given the judgment in Major Sood‟s case. In Vinod Kumar‟s case the landlord had lost after trial, like in the present case. So, in view of the Division Bench decision of this Court given after considering the two conflicting judgments of the Supreme Court to the effect that such a revision petition is maintainable. I shall now proceed further to consider the petition on its merits.

6. From the paras extracted from the impugned order of the Controller it is clear that the learned Controller had not agreed with the objection raised by the respondent that the eviction petition was not maintainable since his landlord was the owner-landlord of the tenanted premises. The eviction petition was however rejected on the ground that the son of the deceased petitioner who was living separately in a rented house and for whose residence eviction of the respondent-tenant was being sought had in fact after the filing of the eviction petition by his mother entered into an agreement to sell in

C.R.P. 972/1998 Page 7 of 9 respect of the house in Meera Bagh where, as per his own deposition as AW-2, with its owner and he was not living there as a tenant and therefore the requirement of the tenanted premises earlier projected in the eviction petition for accommodating this son of the deceased petitioner was no more there. However, in my view this conclusion reached by the learned Controller was based on evidence. A perusal of the trial Court‟s record shows that no documents showing that AW-2 Kanshi Ram had entered into any sale transaction with the owner of the property in Meera Bagh where he claimed to be staying when he had come to Court for giving evidence. In his evidence he had categorically stated that he was living in a house in Meera Bagh as a tenant and he was not cross-examined at all. Therefore, his statement to that effect stood admitted by the respondent-tenant and ignoring that admission the learned Controller simply on surmises and conjectures came to the conclusion that he was living in the house in Meera Bagh not as a tenant.

7. The learned Controller has also observed that the deceased petitioner in her testimony had not stated as to which of her other sons required the tenanted premises which comprised of two rooms on the first floor and also as to which son was occupying which portion and so it could not be determined whether any need for premises had been made out or not. In my view, these findings are totally unreasonable. The case of the petitioners was very clear in the eviction petition as well as in their evidence that their family was of 23 members while they were having only five rooms. That part of their

C.R.P. 972/1998 Page 8 of 9 case has not been rejected by the controller nor was it disputed by the respondent tenant. So, the mere fact that it was not clarified in evidence as to which portion was occupied by which of the family members could not have resulted into rejection of petitioners‟ wholly justified claim for the eviction of the respondent. This reasoning of the learned controller cannot be sustained at all.

8. In my view there could not be a better case than this justifying passing of the eviction order against the tenant in view of the large size of the family of the petitioners and the availability of only five rooms with them.

9. This revision petition is therefore allowed. The impugned order of the controller is set aside and eviction of the respondent-tenant from the tenanted premises is ordered. He is however given six months time to vacate the tenanted premises.

P.K BHASIN,J

March 28, 2012

C.R.P. 972/1998 Page 9 of 9
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Tag: 1995

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