Santosh Duggal, J.
(1) This second appeal has been filed by Oriental Express Company Private Limited, inducted as a lenaiil.in first floor portion of premises bearing No.112, Sunder Nagar, New Delhi for a limited period of three years, under the provisions of Section 21 of the Delhi Rent Control Act, (for short 'the Act'), which period expired, according to the landlady on 4.2.84.
(2) On tenant's failure to band over vacant possession, after lapse of the period of limited tenancy, the respondent took out execution on 6.2.84 to which objections were filed by the tenant in March 84. The said objections were dismissed by an order passed by the Additional Rent Controller on 17.12.91. The Rent Control Tribunal, vide order dated 10.1.92, confirmed the order of dismissal of objections.
(3) The main contentions which have been set forth in this second appeal are that the courts below committed grave error in holding that the tenancy had been created under the provisions, and within the scope of section 21 of the Act with effect from 4.2.1981. It is contended that there is abundant material on record, as evidenced by writing dated 21.1.81 (OW.I/5), that possession had been handed over to the tenant on that date itself, namely, 21.1.81 and a .cheque representing rent for the month of February 1981 was also given, which was accepted by the landlady, and she also confirmed the fact of banding over of possession, by endorsement recorded on the letter given by the tenant through Shri Kanti K.Poddar, director. According to the appellant, there has been a total misconstruction of this document, and this itself gives rise to a question of law, to be examined in this second appeal, the concurrent findings of two courts below notwithstanding.
(4) Mr. Sanghi appearing for the appellant set forth four contentions on behalf of the appellant which merit consideration, namely, (1) this was an exceptional case in which a definite lease coupled with possession pre-existed the application under section 21, rendering the order a nullity; (2) the landlady never wanted or intended or needed to occupy the premises after expiry of three years, nor does she now so require; (3) the documentary evidence on record coupled with oral evidence leaves no manner of doubt that the tenant came to know after the expiry of three years that the premises had earlier been also let out for short period, and that statement of the landlady to the contrary was false, and (4) that the respondent was also concurrently prosecuting the application under under clause (e) to proviso to section 14(1) of the Act, claiming the petitioner to he the regular tenant, and as such the rights, if any accruing under the short term tenancy stood waived.
(5) The question as to what defenses arc open to a tenant who takes a property on rent pursuant to an agreement, represented by an application for permission under section 21 of the Act, and the terms of the lease being subject thereto, has been examined at length by me in another case, vide judgment announced today, being Sao No. 60 of 1988, Shri O. Bahree Vs . M/s. Rikhi : 49(1993)DLT71 , have held on the basis of decisions of the Supreme Court that unless there is lack of a juridictional fact, which could he urged by way of vitiation of validity or legality of the order granting permission under section 21, the tenant cannot be permitted, much less heard, to raise objections in response to landlord's prayer for being put in vacant possession on the expiry of the limited period of tenancy.
(6) The basic plea in this case, is identical to that raised in Sao No.60 of 1.988, namely, that of possession having been handed over before the application under section 21 of the Act was moved before the Rent Controller. In that case, there was no disputing the fact of having handed over possession on the given date, which was prior in time to the application under section 21, landlord's stand being, (which has been upheld), that that was expressly subject to the permission being obtained, and lease deed to be executed only thereafter and, as a matter of fact, it was executed only after the order under section 21 came to be passed.
(7) The present case is no different, because here also the writing which was executed on 21.1.81 (OW.1/5) makes the intention of the parties explicit to the effect that the lease deed was to be executed only after all the formalities of section 21 had been completed in due course, and only a draft lease deed was prepared. The cheque which was enclosed represented the amount of agreed monthly rent of Rs.2500.00 , as rent for the month of February 1981.
(8) The application was, in fact, moved on 2.2.81 when Shri Kanti K. Poddar, a director of the appellant company appeared with the landlady and maded statements, and on the basis of those statements, an -order was passed on 4.2.81 granting permission to the landlady to create tenancy for a limited period of three years. Regular lease deed, which was registered subsequently, was executed thereafter, and the tenancy as per terms of this lease deed commenced only with effect from 5.2.81, which is the date of execution of the lease deed. The signatory to this lease deed on behalf of the tenant is again Shri Kanti K. Poddar, director.
(9) The plea of the landlady is that there was no intention, at all, to create any tenancy before permission under section 21 of the Act was granted, and that the writing Ex. OW.1/5 was recorded for assurance of the tenant to give finality to the negotiations. The contention of the tenant is that this Explanationn was not credible and worthy of consideration for the reason that in reply to the objections, the landlady had made a total denial of the existence of this writing, and that the Explanationn given during her cross-examination was an after-thought. The Rent Control Tribunal has agreed with the appellant in this respect, but nevertheless has held that the terms of the registered lease deed, which was the only document of title, were evidence of the fact that the tenancy was to commence only with the execution of the lease deed.
(10) In view of the detailed discussion on this aspect of the matter in Sao No.60 of 1988, I find all these questions of academic interest, because it has been held therein on !he strength of a Division Bench judgment of this Court reported as 1991 (3) Delhi Law 382 Shri Y.L. Popti vs. Mis. Remedies (India) Pharmaceuticals and others, that even though possession has been handed over, in case the agreement was for creation of a tenancy only in terms of the provisions of section 21 of the Act, then unless permission is granted under section 21, the status of the occupant is no better than-that of a licensee, with no right in the premises, and that relationship of landlord and tenant comes into existence in such a case only on execution of the lease deed, in terms of the agreement between the partics.
(11) The present is a case on pari materia. The writing dated 21.1.81 does not create any rights. The payment covered by the cheque, which was tendered towards monthly rent starts not with effect from the date of writing dated 21.1.1981, but with effect from 1.2.1981, which could be the expected date by which permission would have been applied for, and lease deed executed. It is thus not a case even, as alleged by the appellant, that their was transfer of possession coupled with payment of rent, because the rent did not start from the date writing was executed. There is also a finding on the basis of Ex.OW.1/8 and EX.OW1/ 9 that the cheque was got encased by the respondent on a much later date, and the receipt was issued on 18.2.81.
(12) For this reason, the ratio of judgment in the case : [1952]1SCR269 , Ram Kumar Day v. Jagdish Chandra Deo, Dhabal Deb and another, relied upon by the counsel for the appellant does not apply to the present case, because lease can lie implied by law, in terms of that judgment, in a case where there is acceptance of rent Along with delivery of possession. Apart from the fact that there is no conclusive evidence of actual and physical possession having been delivered on 21.1.1981; otherwise also, as noticed above, it was not accomnpanied by any payment of rent because even on appellant's own showing, rent was paid with effect from 1.2.1982, and not 21.1.1981.
(13) It has also been held in the other case on the strength of judgments of the Supreme Court in the cases of Dimnvnti v. D.D.Gupta, : [1986]3SCR18 and Pankaj Bhargava & another v. Mohinder Nath & another, : AIR1991SC1233 , that even when a tenant has hen put in possession, the subsequent permission of the Rent Controller for creation of a limited term tenancy amounts to ex post facto sanction, and is not tantamount to absence of any such jurisdictional fact, which would render the order under section 21 null and void or make it unenforceable.
(14) I, thereforee, on consideration of the arguments in respect to construction of writing dated 21.1.81, which according to the learned counsel for appellant gave rise to a question of law, am of the opinion that it did not give rise to any concluded contract, but was made subject to, and conditional on, the permission under section 21 of the Act being granted, in such a case where one document, which is executed between the parlies, contemplating execution of further documents, which stipulation is a condition of terms of bargain, and parties act in accordance with that understanding, then there cannot be any concluded contract, unless the .conditions agreed upon are satisfied.
(15) The facts accompanying the writing dated 21.1.81, such as to being subject to a regular lease deed being executed after formalities of section 21 Were carried out, and which, in fad, were carried out, and the regular lease deed executed only thereafter, and with effect from the date of the lease deed and not retrospectively from the dale possession was allegedly given, and the amount of rent having been paid prospectively, are all manifestation of the intention of the partics.
(16) It is pertinent to note that it is not a case like that of S.B. Niironah Prem Kumari Khanna, : [1980]1SCR281 . where the parties were unequal or the landlord in a better bargaining position, than the tenant In this case, the tenant is a private limited company with directors based in Delhi, whereas the landlady was living in far away Bangalore, with her husband also employed there. Mr. Kanti K. Poddar, who is signatory to all these documents, and who appeared before the Additional Rent Controller at the time statements under section 21 were recorded, has not come in the witness box to explain as to what was the intention of the parties when writing dated 21.1.81 was prepared, and under what circumstances, after tenancy had come into existence, as alleged he appeared before the Rent Controller and agreed to take the premises on rent only subject to permission being granted, and became a party to the execution of the lease deed, which expressly stated the date of commencement of the tenancy with effect from 5.2.1981. This is, thereforee, a case which is not covered by the mischief envisaged in the case of Smt. Shrisht Dhawan v. Mls.Shaw Brothers,' 46 (1992) Dlt 194, Dr Smt. Shrisht Dhawan v. Show Brothers (Supreme Court) namely, lack of such a jurisdictional fact which could entitle the tenant to come up with objections after the landlord filed an execution application on the expiry of the limited term tenancy, because all the facts, which are now being agitated, namely, that the possession bad already, been handed over to the tenant or that the letting was not exclusively for residential purposes, were all within the knowledge of the tenant right from the inception and there was no justification for him not to conic to the Court during the subsistence of the period of tenancy, but enjoy the tenancy premises for whole- of the period, and come up with the objections, only when the landlady sought vacant possession.
(17) There are also indications on record that the appellant harboured an intention not to vacate the premises, and create excuses or dig out facts which could enable them to resist the landlady's attempt to get possession because it is on record that they employed a detective agency in 1983 itself. Before that, it is their own case, that they had every intention to vacate the premises, because they were aware that their tenancy was only for a limited period, and expiring on 4.2.1984, which means that they accepted the fact that their occupancy was in terms of the permission under section 21 of the Act, and it is somewhere thereafter that they seem to have developed an intention to drag on the proceedings and resist handing over of possession.
(18) I have thus no reason to take a view different than taken in Sao No.60 of 1988 in so far as this plea of pre-existing tenancy is concerned.
(19) The argument which has been made in addition is that the judgment in the case of Pankaj Bhargava (supra) was not a judgment within the meaning of Article 14 of the Constitution of India, and is thus not binding. The argument proceeds on the assumption that the judgment is per incuriam or suffers from the vice of sub silention. Mr. Kanwal Narayan, one of 'the counsel appearing for the appellant, elaborated this argument by saying that there Were earlier judgments of the Supreme Court holding that when a judgment or decree was a nullity, the objection to its enforceability can be taken at any stage, including that of execution, and even by way of any other collateral proceedings. He has argued on the basis of Air 1961 Mys 3, M/s. New Krishna Bhawan, Malleswaram Bangalore. Commercial Tax Officer, No. 1V Circled (Addl.) Bangalore, that in the event of conflict of view in Supreme Court decisions, the latest view was binding on courts, and contended that the latest judgment of the case of Shrisht Dhawan (supra) was more explicit, and gave a right to the tenant to file objections in specified situations, even after the expiry of the period of tenancy.
(20) I am afraid, the argument of the learned counsel proceeds on an erroneous assumption on more than one count, and nothing short of begging the issue. In the first place, there is no conflict between any of the decisions of the Supreme Court on this question. Secondly, the judgment in the case of Pankaj Bhargava (supra) takes note of all the previous, decisions of the Supreme Court on this subject of section 21, namely, J.R. Vohra v. Indian Export House Ltd., : [1985]2SCR899 , Shiv Chander Kapoor v. Amar Base, Jt 1989 (4) Sc 471 and Yamuna Maloo v. Anand Swamp, : [1990]1SCR715 . It is a settled proposition that the provisions of section 21 of the Delhi Rent Control Act constitute a self contained Code. That being so, judgments in regard to the competence of objections, or maintainability thereof about the judgment or decree being a nullity even at execution stage, pertain to cases arising out of general civil law, and would have no bearing on cases arising under section 21. Furthermore, the judgment in the case of Shrisht Dhawan (supra) does not lay down any proposition contrary to the ratio of the judgment in the case of Pankaj Bhargava (supra). The learned counsel did not cite any judgment arising out of the provisions of section 21 of the Act, which might have laid down any principle or proposition which the judgment in Pankaj Bhargava's case did not take note of. The case on which learned counsel for the appellant placed reliance, namely, Jt 1989 Supp. S.C. 319, Sushil Kumar Mehta v. Govind Ram Vohra (dead) through his L.Rs. is altogether different, namely, where there was an inherent lack of jurisdiction in the civil court passing the decree, because the finding recorded was that it was only the Controller acting under the provisions of Haryana Urban (Control of Rent & Eviction) Act, 11 of 1973, who had jurisdiction, and it was a case where the decree was held to be a nullity on account of having been passed by a court, without inherent jurisdiction. The mere fact that the judgment in Pankaj Bhargava's case (supra) does not refer to that judgment, as it does not appear to have been cited before their Lordships, is of no consequence because this judgment deals with a totally different proposition. The decision in Pankaj Bhargava's case is very well reasoned and explicitly discussed the principle of even collateral challenge; and held on the basis of earlier judgments of the court that since there was presumption as to validity and legality, of an order passed by Rent Controller under section 21 of the Act, .and there could never be any initial presumption of nullity; a challenge cannot be made by the tenant at the execution stage. This has been further elaborated in the case of Shrisht Dhawan (supra), and there is no reason for me to take a view different from the one taken in Sao No.60 of 1988, as I find the argument that judgment in Pankaj Bhargava's case (supra) was per incuriam or sub silentio, to be wholly devoid of merits.
(21) As regards the contention that the landlady never intended or needed to occupy the premises after expiry of three years nor does she now so require, this type of objection cannot be allowed to be raised at this stage by way of objections to the execution application taken out by the landlady. As already discussed, on the strength of the decision in the cases of Pankaj Bhargava (supra) and Smt. Shrisht Dhawan (supra), such type of objections must,be raised during subsistence .of the tenancy. Apart from that, it has been held in the case of Shv Chander Kapoor (supra) that in cases of tenancies created pursuant to an order under section 21 of the Act, the requirements of clause (e) of proviso to sub-section (1) of section 14 of the Act, cannot be pleaded. This plea accordingly is not available to the appellant. Even on facts, it is not the case of the appellant that the respondent has any other residential accommodation in Delhi. It has been landlady's stand from the very beginning that she wants to shift to Delhi after retirement of her husband. That event has taken place. She has stated on oath that she had every intention to reside in Delhi Along with her husband for reasons spelt out in her statement. In face of that, the mere fact that they have built a house in Bangalore would not have stood in the way of the landlady claiming vacant possession of the premises in question, even if she had initially approached the Controller under section 14(1)(e) of the Act.
(22) I would also like to deal with another plea raised on behalf of the appellant as to suppression and concealment of facts, to the effect that it was not disclosed in the application under section 21 or the execution application made before the Rent Controller that the premises had been previously let out to different tenant. This is a wholly untenable plea in face of landlady's clear statement supported by documents that after the respondent became exclusive owner of the premies, the appellant was the first tenant, and that the previous tenants had been there during the time the premises were owned by the predecessor-in-interest of the respondent. Consequently, nothing turns on this.
(23) A belated attempt has been made to make it out to be a case, which could fall within the scope of the dictum laid down in Shrisht Dhawan's case (supra), by seeking amendment to the objections filed, as far back as, on 23.8.84, by moving an amendment application on 1.2.91, at the fag end of the proceedings, and after evidence had been recorded. That averment is contained in one para, (para 2), in a very perfunctory manner, by stating that the facts, as set out in the objections regarding concealment of material facts by the decree-holder, and suppression of that fact from the court and the judgment-debtor, at the time of obtaining permission under section 21 of the Act, came to the knowledge of the objector only on 6.2.1984. It is pertinent to note that this date has been introduced because the period of limited tenancy expired on 4.2.1984. The falsity of this averment is glaring on the face of the appellant, because there are four successive reports on record forwarded to the appellant by the detective agency, employed by them as far back as on 8.9.1983; the dates of reports being 27.9.1983, 26.10.1983, 9.1.1983 and 12.12.1983. These reports contain all the facts, as are pleaded by the appellant in their objections, namely, the landlady's husband having constructed a house in Bangalore, and the family having moved into that house, and all related matters. The stand of the appellant, through its director Shri Kanti K. Poddar, who Hide affidavit in support of the amended objections, is wholly false and deserves outright rejection. This betrays the dishonesty on the part of the appellant to deny to the landlady right of possession of her property by taking pleas which are to their knowledge false. I am amazed that in view of the reports of the detective agency, the latest being of 12.12.1983, the counsel pressed this plea even during hearing of the appeal.
(24) Another pica which I find to be wholly specious was raised by Mr. Kanwal Narayan with reference to the provisions of section 19 of the Act, contending that these provisions make the legislative intent clear to the effect that the landlady must be in a position to occupy the tenancy premises within a period of two months from the date of vacation thereof by the tenant. The contention is that since the landlady has a house in Bangalore, she obviously has no intention to shift to Delhi, and consequently she cannot satisfy the requirements of section 19. I am constrained to say that this argument is wholly misplaced because apart from the fact that provisions of section 21 constitute a Code by themselves and are not relatable to any other provision under the Act, otherwise also, there is no basis for contending that the landlady has no intention to shift to Delhi or live in the house after vacation appellant.
(25) Lastly, it was contended, that the respondent has, during the pendency of objections, and to be more specific, in the year 1986 filed a separate petition under clause (e) of proviso to section 14(1) of the Act, which means that she accepts the appellant to he a regular tenant, and in lace of that is now estopped from pleading that the tenancy was subject to an agreement under section 21 of the Act, or pursuant to an order passed there under. Reply of the respondent to this is that the said petition was filed clearly stating that it was without prejudice to the execution application already pending disposal because of the objections filed by the tenant. Photo copies of the petition filed by the respondent under section 14(1)(c) were supplied during hearing, and I find that the respondent has made the position unequivocally clear that the rights accruing under section 21 were not being abandoned, and that the subsequent petition was being filed without prejudice to those rights.
(26) Learned counsel for appellant contended that the reservation of rights by inserting 'without prejudice' was of no consequence, by placing reliance in support of this on a judgment of Madras High Court reported as Air 1983 Mad 1679, H.G.Krishna Reddy and Co. v. M.M. Thimmiah and another. That is a case wholly dependent upon its own facts, where in a transaction of agreement of sale, subsequently the vendor had refunded to the prospective purchaser the amount received from him, which the purchaser had accepted, though without prejudice. The court held in a suit filed by the said purchaser for specific performance of the contract that the plaintiff had waived his right to enforce the contract by accepting back the money paid towards sale price.
(27) The present case is wholly distinguishable, because the rights which accrued to the landlady under section 21 are rights created by law, and the order under section 21 is unassailable, then if because of protraction of the proceedings, and as a result of objections filed by the. tenant, in desperation she filed another petition, but fully protecting her right under the provisions of section 21. I do not find that those rights can be held to stand defeated.
(28) In this connection I find myself in agreement with a judgment of the Punjab & Haryana High Court, reported as 1990 (1) Rcr 358. Dr. S.M. Nehru. Shri D.D. Malik, where during the pendency of an application moved under section 13A of the East Punjab Urban Rent Restriction Act, 1949, which is a special provision for specified landlords, subsequently an application was filed In' the landlord under section 13(3)(a)(i) on ground of bona fide requirement and arrears of rent, it was held that this will not disentitle the landlord to claim relief under the previous application because the landlord had protected his right under section 13A in the second application.
(29) The position in the present case is identical and I am also of the view that when the rights are protected by averring that the subsequent petition was being filed without prejudice to the earlier pending petition, then no plea of waiver or estoppel is available to the tenant.
(30) As a result, I do not find any merit in this appeal. The same is accordingly dismissed with costs. Counsel's fee Rs.5,000.00 .
(31) The appellant shall put the respondent in vacant possession of the premises in their occupation, within one month from today.