Mahesh Kumar vs Kamal Kanta Sharma

Hima Kohli, J.—The present petition is directed against an order dated 2.3.2010 passed by the learned ARC disposing of the eviction petition preferred by the respondent/landlady u/s 14(1)(e) of the Delhi Rent Control Act, 1958 in respect of a shop situated in premises bearing No. A-13, Raj Park, Sultanpur Majra, Delhi. By the aforesaid order, the learned ARC recorded the statement of the petitioner/tenant (respondent in the court below) as also the counsel for the respondent/Landlady that the parties had arrived at a settlement and accordingly disposed of the eviction petition.

On 12.3.2010, the petitioner preferred an application seeking recall of the aforesaid order dated 2.3.2010, which was dismissed by the learned ARC vide order dated 15.3.2010, by observing that on the aforesaid date, a compromise was arrived at between the parties and there is no allegation of any forgery by the petitioner/tenant.

The stand of the petitioner/tenant in the present case is that on 2.3.2010, when his statement was recorded, he was unaware of the fact that he was required to vacate the tenanted shop as also the second shop situated in the same premises by 31.3.2011. It is stated by the counsel for the petitioner that her client does not know English and cannot understand the said language and that he normally signs in Hindi. It is further stated that the compromise recorded on 2.3.2010 is not in accordance with law as no specific terms and conditions of the settlement were recorded by the learned ARC, apart from the period upto 31.3.2001, sought by the petitioner/tenant to vacate both, the tenanted premises and the second shop, to which he was required to shift by 1.4.2010. The petitioner/tenant has also sought to blame his previous counsels for not explaining to him the terms and conditions of the settlement.

I have heard the counsel for the petitioner and have also perused the documents filed along with the present petition.

The impugned order dated 2.3.2010 is very brief. The learned ARC permitted the eviction petition to be dismissed as withdrawn in view of the statement of the parties that they had settled their dispute. In the first instance, the statement of the petitioner/tenant was recorded by the learned ARC. The petitioner/tenant stated that he and the respondent/landlady had agreed that he will shift from the existing shop to the corner shop within one month, by 1.4.2010 and he further undertook to vacate the tenanted premises under his occupation on or before 31.3.2011. After his statement was recorded, the petitioner/tenant affixed his signatures in Hindi in the margin of the order sheet. Along with the signatures of the petitioner/tenant, are the signatures of his counsel, duly identifying him. Thereafter, the statement of the counsel for the respondent/landlady was recorded, accepting the terms and conditions of the settlement and seeking liberty to withdraw the eviction petition as satisfied. The signatures of the counsel for the petitioner/tenant were also affixed in the order sheet.

After recording the statement of the petitioner/tenant and the counsel for the respondent/landlady, the learned ARC passed the following order:

The statement of counsel for the petitioner has been recorded separately. I have perused the same. In view of the statement the suit is dismissed as satisfied. Parties shall be bound by their respective statements. No Order as to cost. Original documents if any be returned to the parties subject to filing of signed photocopies thereof. File be consigned to Record Room.

Counsel for the petitioner/tenant states that as the petitioner/tenant did not understand the import of the aforesaid order and realized the effect of the same only after coming out of the court, he filed an application on 12.3.2010 before the learned ARC, seeking recall/review of the aforesaid order.

It is pertinent to note that in the said application (Annexure R-12), the petitioner/tenant stated that on 2.3.2010, his previous counsel suggested to him outside the court that he would lose the case and that if he wanted to save his case, he should ask the court for grant of two years'' time to vacate the tenanted premises. It is stated in the application that "by misunderstanding", the petitioner/tenant made the statement as recorded in the order dated 2.3.2010. It is further averred in para 3 of the application that after recording his statement, the petitioner/tenant "realized his mistake" and contacted the previous counsel, who told him that nothing could be done. As a result, he engaged another counsel to file the review application. As noted above, the said application for review was also dismissed vide order dated 15.3.2010.

On enquiry as to the educational qualification of the petitioner/tenant, counsel for the petitioner/tenant states that he has passed Class X, but he is not familiar with English language, as he did his schooling from a government school. The aforesaid submission is not sufficient to explain away the statement of the petitioner/tenant, as recorded by the learned ARC on 2.3.2010. It is not as if the petitioner was not assisted by his counsel on the aforesaid date. It is also not the case where the petitioner''s statement was not recorded by the court itself. The petitioner/tenant was present in the court and was given an oath before his statement was recorded by the court. While recording the statement of the petitioner/tenant, it was also recorded that the said statement had been made by him voluntarily and he would remain bound by the same. It is hard to believe that the petitioner/tenant was unaware of the fact that under the terms of the compromise arrived at by him with the respondent/landlady, he had agreed to shift from the shop which was under his occupation (subject matter of the eviction petition), to a corner shop in the same premises on or before 1.4.2010 and further, he had agreed to vacate the second premises also on or before 31.3.2011.

If the petitioner had a grievance with regard to any misunderstanding, which he claimed came to his knowledge immediately after his statement was recorded followed by the passing of the impugned order, in view of the urgency of the matter, nothing precluded him from returning to the learned ARC on the very same day, or even on the next day. He however chose to file the review application after 10 days. Pertinently, though the petitioner has a grievance against the previous counsel who appeared for him on 2.3.2010 and through whom the leave to defend the application was filed on his behalf that he was misled, no complaint was filed by him against the said counsel till the date of institution of the present petition and for that matter, even till the last date of hearing, i.e., 12.4.2010. The said query was posed to the counsel for the petitioner/tenant on 12.4.2010. However, on the said date, after addressing arguments at some length, learned Counsel sought an adjournment on the ground that she wished to refer to certain judgments. Today, she starts by claiming that the petitioner has now filed a complaint against the previous counsel before the Bar Council of Delhi. It is obvious that the petitioner/tenant has got wiser after the event and such a complaint lodged after 12.4.2010, can be treated as nothing but a motivated one, lodged by the petitioner/tenant only with the intention of trying to wriggle out of the statement made by him voluntarily before the learned ARC. The said complaint can therefore not be taken into consideration while deciding the present petition.

The second contention of the counsel for the petitioner/tenant that the compromise is not binding and not in accordance with law as the same is not in writing, that it is not a detailed one specifying the other terms and conditions of settlement, is also devoid of merits. If the learned ARC did not record the rate of rent payable, or date of payment or the manner of payment of electricity bills etc. in respect of the tenanted shop, while disposing of the petition, it only goes to show that all the other terms and conditions of tenancy remained unchanged and the petitioner/tenant would continue to pay the rent at the agreed rate to the respondent/landlady and clear the other dues as he was doing earlier, till he vacates the suit premises.

Reliance sought to be placed by the counsel for the petitioner/tenant on the case of Sri Swami Krishnanand Govindanand Vs. M.D. Oswal Hosiery (Registered), is of no avail as in the aforesaid case, it was only a statement of the counsel for the petitioner/tenant conceding the eviction that resulted in a compromise being recorded by the learned ARC. As per the facts of the aforesaid case, the respondent/tenant therein challenged the settlement recorded by the ARC by filing a review application, which was dismissed. He then filed a writ petition challenging the validity of the eviction order which was dismissed as withdrawn and he filed an appeal against the order of eviction before the Rent Control Tribunal which was also dismissed. When the appellant/landlord filed an execution petition against the respondent/tenant, he raised objections to the same which were dismissed. The said order was challenged by the respondent/tenant before the Rent Control Tribunal unsuccessfully. Aggrieved by the order of the Rent Control Tribunal, the respondent/tenant preferred a second appeal which was allowed by the High Court. The said order of the High Court was assailed by the appellant/landlord before the Supreme Court. The SLP of the appellant/landlord was dismissed by the Supreme Court with the observation that the compromise like a contract postulates consensus between two parties and that a statement of counsel conceding the grounds of eviction and seeking some time for the respondent to vacate the premises, cannot be termed as a compromise.

Unlike the facts of the aforesaid case, in the present case, it was the statement of the petitioner/tenant himself which was recorded in Court by the learned ARC. This was followed by the statement of the counsel for the respondent/landlady that the terms and conditions of settlement as stated by the petitioner/tenant were acceptable to his client. Hence the mutuality between the parties is apparent, and as the contract for all effects and purposes was complete, it cannot be stated to be one in which there was absence of consensus between the parties. It is also pertinent to note that even in the application filed by the petitioner/tenant seeking review of the order dated 2.3.2010, he did not deny having made the statement that he did before the learned ARC. He only stated that he realized that "there was a mistake". That the petitioner/tenant has had a second thought after entering into an agreement and seeks to backtrack from his settlement with the respondent/landlady, cannot be a ground to assail the impugned order. There is no infirmity in the said order, which deserves interference. The same is in accordance with law.

At this stage, counsel for the petitioner/tenant states on instructions from her client that he is ready and willing to hand over vacant peaceful possession of the tenanted premises to the respondent/landlady on or before 31.3.2011 in terms of the settlement, but for the said duration, he may be permitted to remain in the same shop, without shifting to the corner shop in the same premises, as it would entail huge expenditure for relocation for a short time of one year, particularly in view of the fact that he is running a business of sale and purchase of jewellery from the shop which requires installing of safeguards and safety equipment for security reasons.

Having regard to the aforesaid statement made by the petitioner/tenant, who is present in Court, issue notice to the respondent, limited only to the aforesaid extent that the petitioner/tenant may be permitted to retain the tenanted shop, subject matter of the eviction petition, till the date agreed upon in the compromise, i.e., till 31.3.2011 and immediately thereafter, he would hand over vacant peaceful possession thereof to the respondent/landlady and shall file usual undertakings to this Court for the said purpose.

Notice shall be served through ordinary process as also by DASTI returnable on 27.4.2010.