TMT. KASTHURI RADHAKRISHNAN & ORS. Vs. M.CHINNIYAN & ANR
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 5158 of 2009, Judgment Date: Jan 28, 2016
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.5158 OF 2009
Tmt. Kasthuri Radhakrishnan & Ors. ……Appellant(s)
VERSUS
M. Chinniyan & Anr. ……Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1) This appeal is filed by the plaintiffs against the final judgment and
order dated 11.07.2007 passed by the High Court of Judicature at Madras in
Civil Revision Petition No. 337 of 2002 whereby the High Court allowed the
revision petition filed by respondent No.1 herein and set aside the
judgment dated 28.06.2001 of the Principal Subordinate Judge, Erode in
R.C.A. No. 5 of 2001 and order of eviction dated 31.10.2000 passed by the
Rent Controller (I Addl. District Munsif), Erode in RCOP No. 26 of 1998.
2) In order to appreciate the issue involved in this appeal, it is
necessary to set out in brief the relevant facts in relation to eviction
case out of which this appeal arises and also state the facts of three
cases filed by the parties in respect of the suit premises because they
were referred to in the proceedings out of which this appeal arises.
3) The appellants (plaintiffs) are the wife and sons of one A.
Radhakrishnan. The suit premises bearing Door No. S-3, Periyar Nagar
Housing Unit, Erode Town, comprised in T.S. No. 909/3, Block No. 17 and
598/2 Part, Ward 1, Block 20, Surampatti Village, Erode Taluk, Erode sub-
District, Erode Registration District was allotted to A. Radhakrishan by
Tamil Nadu Housing Board. In fact, entire area was acquired by the Housing
Board and one house site therein was allotted to A. Radhakrishnan.
Subsequently, A. Radhakrishnan made construction on the site allotted to
him.
4) On 22.02.1987, A. Radhakrishnan executed a general power of attorney
in favour of one V. Dhanapal and nominated him to administer and manage the
suit premises on his behalf.
5) One N. Kalidass was in occupation of the suit premises as tenant. On
04.02.1988, he vacated and surrendered the possession of the suit premises
to Dhanapal. Thereafter respondent No.1 took the suit premises on lease
rent from Dhanapal under a written lease deed dated 12.02.1989 for a period
of 11 months on a monthly rent of Rs.850/- and paid Rs.4000/- as advance.
Respondent No.1 then obtained possession of the suit premises and started
residing therein with his family.
6) The appellants, however, came to know that A. Radhakrishnan without
their knowledge entered into a sale agreement dated 30.07.1987 to sell the
suit premises to one A.S. Pongianna. The appellants, therefore, instituted
a suit being O.S. No. 53 of 1989 (re-numbered as O.S.549/1989) in the Court
of District Judge, Erode and sought a declaration that the sale agreement
dated 30.07.1987 was neither valid and nor binding on them and also sought
a permanent injunction against A. Radhakrishnan restraining him from
executing the sale deed in favour of A.S. Pongianna and delivering
possession of the suit property to him. In this suit, respondent No. 1 was
impleaded as one of defendants.
7) Respondent No.1 filed a written statement in the aforesaid suit
reiterating therein that he was inducted in the suit premises as a tenant
under a lease deed dated 12.02.1989 for a period of 11 months at monthly
rent of Rs.850/- and on the expiry of the contractual period of lease, he
continued to remain in the suit premises as a tenant.
8) Respondent No.1 also, in the meantime, filed a suit being O.S. No. 87
of 1989 in the Court of Subordinate Judge, Erode against A. Radhakrishnan
and the appellants herein seeking permanent injunction restraining the
appellants from dispossessing them from the suit premises. According to
respondent No.1, he was a tenant and was put in possession of the suit
premises by Dhanapal, the power of attorney holder of A. Radhakrishnan,
pursuant to a lease deed dated 12.02.1989 for a period of 11 months at a
monthly rent of Rs.850/-. He also alleged that since the appellants were
dissatisfied with the rent fixed under the lease deed, therefore, they were
attempting to dispossess him from the suit premises. In this suit, on
22.02.1990, A. Radhakrishnan filed a written statement stating inter alia
that respondent No.1 was put in possession of the suit premises as his
tenant and that he had already cancelled the power of attorney executed by
him in favour of Dhanapal by executing a registered cancellation deed dated
13.03.1989.
9) Since A. Radhakrishnan was refusing to accept the rent from February
1989, respondent No.1 filed a petition bearing R.C.O.P. No. 2 of 1991 under
Section 8(5) of the Tamil Nadu Buildings (Lease and Rent Control) Act in
the Court of the Rent Controller of Erode. In the meantime on 23.09.1994,
A. Radhakrishnan expired intestate leaving behind him the present
appellants as his class I heirs and one daughter – Tmt. R. Kanjana. The
appellants thus became the owners of the suit premises by inheritance.
10) On 14.10.1998, respondent No.1 through his advocate sent a notice to
the appellants herein and Tmt. R. Kanjana, the daughter of late A.
Radhakrishnan, claiming that upon payment of Rs. 1 lakh on 08.05.1988, A.S.
Pongainna had assigned his rights in the agreement dated 30.07.1987
executed between him and late A. Radhakrishnan, in his favour, therefore,
he called upon the appellants to execute the sale deed of the suit premises
in his favour.
11) The appellants then filed Eviction Petition bearing R.C.O.P. No. 26
of 1998 in the Court of the Rent Controller (District Munsif) Erode against
respondent No. 1 out of which the present appeal arises seeking eviction of
respondent No.1 from the suit premises under Sections 10 (2) and
10(3)(a)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act 1960
(in Short “the Act”). The eviction was sought essentially on two grounds,
namely, willful default in paying monthly rent since 12.02.1989 and
secondly, bona fide need for the use and residence of the appellants in the
suit premises because according to the appellants they were residing in
rented accommodation and had no other suitable house of their own in the
city where they could live.
12) Vide order dated 21.12.1998, the Court of the Subordinate Judge,
Erode decreed O.S. No. 87 of 1989 filed by respondent No.1 against the
appellants on the basis of an endorsement made by the appellants and passed
a permanent injunction restraining the appellants from interfering with the
peaceful enjoyment of respondent No.1 over the suit property and from
dispossessing him till he was evicted under a due process of law.
13) Vide order dated 05.01.1999, O.S. No. 53/1989 (which was renumbered
as O.S. No. 549/1989) was dismissed as not pressed by the appellants.
14) So far as the eviction petition out of which this appeal arises is
concerned, the Rent Controller allowed RCOP No. 26 of 1998 filed by the
appellants vide order dated 31.10.2000 and directed the eviction of
respondent No.1 from the suit premises. It was held that the appellants are
the owners/landlords of the suit premises. It was also held that respondent
No. 1 is in occupation of the suit premises as tenant. It was further held
that respondent No. 1 has committed willful default in paying the monthly
rent and being a defaulter in payment of rent is liable to be evicted from
the suit premises. It was also held that the appellants have proved bona
fide need for their personal residence in the suit premises because they
were living in the rented house at a place called Salem. The appellants
were, therefore, held entitled to claim eviction of respondent No. 1 from
the suit premises on these findings.
15) Against the said order, respondent No.1 filed an appeal bearing
T.C.A. No. 5 of 2001 in the Court of Subordinate Judge, Erode. Vide order
dated 28.06.2001, the subordinate Judge, Erode dismissed the said appeal
and confirmed the judgment passed by the Rent Controller.
16) Against the said order, the respondent filed a revision petition
being C.R.P. No. 337 of 2002 before the High Court. The High Court, by
judgment dated 19.12.2003, dismissed the revision petition filed by
respondent No.1.
17) Respondent no. 1 then filed an application seeking review of the
order dated 19.12.2003 passed by the High Court in C.R.P. No. 337 of 2002.
18) The High Court by judgment dated 05.02.2007, allowed Review
Application No. 91 of 2004 filed by the respondent No.1.
19) As a result of review being allowed C.R.P. No. 337/2002 was restored
to file for its hearing on merits. The High Court, this time, by impugned
order dated 11.07.2007 allowed the revision filed by respondent No.1 on two
legal grounds and set aside the order of the first appellate Court and also
of Rent Controlling Authority. As a consequence, thereof, the eviction
petition (RCOP No.26 of 1998) filed by the appellants was dismissed. It
was held that the eviction petition filed by the appellants is not
maintainable because the daughter of Late A. Radhakrishnan, Tmt. R. Kanjana
was not made a party to the eviction petition. According to the High Court
she being one of the co-owners of the suit premises was a necessary party
to eviction petition. It was also held that appellants failed to establish
the relationship of landlord and tenant with the respondent No.1 and on the
other hand it appeared that tenancy in relation to suit property was
between Dhanapal and respondent No.1. The High Court thus allowed the
respondents’ revision essentially on these two grounds
20) Aggrieved by the said judgment, the appellants have filed this appeal
by way of special leave before this Court.
21) Heard Mr. Nikhil Nayyar, learned counsel for the appellants and Mr.
B. Adinarayan Rao, learned senior counsel for respondent No.1 and Mr. Amit
Gupta, learned counsel for respondent No.2.
22) Mr. Nikhil Nayyar, learned counsel appearing for the appellants while
assailing the legality and correctness of the impugned order urged three
submissions.
23) In the first place, learned counsel submitted that the High Court
having rightly dismissed the revision petition filed by respondent No.1 in
the first round erred in allowing the review petition of respondent No.1
and in any event after its restoration erred in allowing the said revision
petition. It was his submission that the High Court committed
jurisdictional error in interfering in its revisionary jurisdiction in
upsetting well reasoned concurrent findings of facts recorded by the Rent
Controller and the first appellate Court in appellants’ favour and that too
on two grounds, which were not urged before the Rent Controller and the
appellate Court by respondent No.1.
24) In the second place, learned counsel urged that two legal grounds on
which the High Court allowed the revision petition, namely, that non-
joinder of one of the co-owners of the suit property (daughter of late A.
Radhakrishnan) to the eviction petition was fatal to the filing of eviction
petition and secondly, the appellants were not able to establish the
relationship of landlord and tenant with respondent No.1 in relation to the
suit premises, have no merit and deserve rejection.
25) Elaborating this submission, learned counsel contended that so far as
the first ground is concerned it is untenable in the light of the law laid
down by this Court in Dhannalal Vs. Kalawatibai and Others, (2002) 6 SCC
16, wherein it is laid down that it is not necessary to implead all the co-
owners of the suit premises in eviction petition and even if some of the co-
owners have filed the eviction petition, it is maintainable in law.
According to learned counsel since this finding was recorded by the High
Court without taking into consideration the law laid down by this Court in
the case of Dhanalal (supra), the same deserves to be set aside.
26) Learned counsel also pointed out that in any event, the
aforementioned infirmity was cured by the appellants factually because the
daughter of late A Radhakrishnan, Tmt R. Kanjana was later added as a party
in the eviction proceedings.
27) In the third place, learned counsel urged that so far as the second
ground is concerned, namely, respondent No. 1 was inducted by Dhanapal in
the suit premises and not by the appellants and, therefore, the appellants
were not able to establish their relationship of landlord and tenant with
respondent No.1 also has no merit for the reason that Dhanapal did not
execute the tenancy agreement with respondent No.1 in his capacity as
owner/landlord of the suit premises but executed the said tenancy agreement
on behalf of late A. Radhakrishnan as his power of attorney holder.
28) Learned counsel pointed out that in these circumstances any act done
by Dhanapal in relation to suit premises including creation of tenancy was
an act done for and on behalf of A. Radhakrishnan. It was, therefore, urged
that the tenancy was, as a fact, between A. Radhakrishnan being
owner/landlord of suit premises and respondent No.1 as his tenant which
later devolved on the appellants after the death of A. Radhakrishanan by
operation of law thereby conferring a right on the appellants as co-owners
of suit premises to file the eviction petition against respondent No.1 for
his eviction from the suit premises.
29) Lastly, learned counsel contended that on the aforementioned grounds,
which had no substance, the High Court could not have set aside the
concurrent findings of facts recorded in appellants’ favour by the Rent
Controller and the first appellate Court, which had ordered the eviction of
respondent No.1 from the suit premises.
30) In reply, learned counsel for respondent No.1 supported the impugned
judgment and contended that it deserves to be upheld, calling no
interference therein.
31) Having heard learned counsel for the parties and on perusal of the
record of the case, we find force in the submissions urged by learned
counsel for the appellants.
32) Before we proceed to examine the issues raised in this appeal, we
consider it apposite to take note of the law laid down by this Court on
three issues which are involved in this appeal, viz., issue in relation to
revisional jurisdiction exercised by the High Court in rent matters;
second, the scope of inquiry to examine the title of the landlord of the
suit premises in eviction matters; and third, whether all the co-owners/co-
landlords of suit premises are necessary parties in the eviction petition
filed under the Rent Laws and lastly law relating to power of attorney
executed by principal in favour of his agent.
33) So far as the issue pertaining to exercise of revisional jurisdiction
of the High Court while hearing revision petition arising out of eviction
matter is concerned, it remains no more res integra and stands settled by
the Constitution Bench of this Court in Hindustan Petroleum Corporation
Limited vs. Dilbahar Singh (2014) 9 SCC 78. Justice R.M. Lodha, the
learned Chief Justice speaking for the Bench held in para 43 thus:
“43. We hold, as we must, that none of the above Rent Control Acts entitles
the High Court to interfere with the findings of fact recorded by the first
appellate court/first appellate authority because on reappreciation of the
evidence, its view is different from the court/authority below. The
consideration or examination of the evidence by the High Court in
revisional jurisdiction under these Acts is confined to find out that
finding of facts recorded by the court/authority below is according to law
and does not suffer from any error of law. A finding of fact recorded by
court/authority below, if perverse or has been arrived at without
consideration of the material evidence or such finding is based on no
evidence or misreading of the evidence or is grossly erroneous that, if
allowed to stand, it would result in gross miscarriage of justice, is open
to correction because it is not treated as a finding according to law. In
that event, the High Court in exercise of its revisional jurisdiction under
the above Rent Control Acts shall be entitled to set aside the impugned
order as being not legal or proper. The High Court is entitled to satisfy
itself as to the correctness or legality or propriety of any decision or
order impugned before it as indicated above. However, to satisfy itself to
the regularity, correctness, legality or propriety of the impugned decision
or the order, the High Court shall not exercise its power as an appellate
power to reappreciate or reassess the evidence for coming to a different
finding on facts. Revisional power is not and cannot be equated with the
power of reconsideration of all questions of fact as a court of first
appeal. Where the High Court is required to be satisfied that the decision
is according to law, it may examine whether the order impugned before it
suffers from procedural illegality or irregularity.”
34) Similarly, so far as the scope and nature of inquiry, which is
required to be undertaken to examine the title of the landlord in eviction
matter is concerned, it also remains no more res integra and stands settled
in the case of Sheela & Ors. vs. Firm Prahlad Rai Prem Prakash, (2002) 3
SCC 375. Justice R.C.Lahoti (as His Lordship then was) speaking for the
Bench held that the concept of ownership in a landlord-tenant litigation
governed by Rent control laws has to be distinguished from the one in a
title suit. Indeed, ownership is a relative term, the import whereof
depends on the context in which it is used. In rent control legislation,
the landlord can be said to be the owner if he is entitled in his own legal
right, as distinguished from for and on behalf of someone else to evict the
tenant and then to retain control, hold and use the premises for himself.
What may suffice and hold good as proof of ownership in landlord-tenant
litigation probably may or may not be enough to successfully sustain a
claim for ownership in a title suit.
35) Likewise, so far as issue pertaining to joinder of all co-owners in
eviction petition filed against the tenant under the Rent Laws is
concerned, the same also remains no more res Integra and stands settled by
several decisions of this Court. In Dhannalal vs. Kalawathibai Ors.,
(Supra), this Court took note of all case laws on the subject and
explained the legal position governing the issue. Justice R.C.Lahoti (as
His Lordship then was) speaking for the Bench held in paragraph 16 as under
:
“16. It is well settled by at least three decisions of this Court, namely,
Sri Ram Pasricha v. Jagannath,(1976) 4 SCC 184 Kanta Goel v. B.P. Pathak,
(1977) 2 SCC 814 and Pal Singh v. Sunder Singh, (1989) 1 SCC 444 that one
of the co-owners can alone and in his own right file a suit for ejectment
of the tenant and it is no defence open to the tenant to question the
maintainability of the suit on the ground that the other co-owners were not
joined as parties to the suit. When the property forming the subject-matter
of eviction proceedings is owned by several owners, every co-owner owns
every part and every bit of the joint property along with others and it
cannot be said that he is only a part-owner or a fractional owner of the
property so long as the property has not been partitioned. He can alone
maintain a suit for eviction of the tenant without joining the other co-
owners if such other co-owners do not object. In Sri Ram Pasricha case
reliance was placed by the tenant on the English rule that if two or more
landlords institute a suit for possession on the ground that a dwelling
house is required for occupation of one of them as a residence the suit
would fail; the requirement must be of all the landlords. The Court noted
that the English rule was not followed by the High Courts of Calcutta and
Gujarat which High Courts have respectfully dissented from the rule of
English law. This Court held that a decree could be passed in favour of the
plaintiff though he was not the absolute and full owner of the premises
because he required the premises for his own use and also satisfied the
requirement of being “if he is the owner”, the expression as employed by
Section 13(1)(f) of the W.B. Premises Tenancy Act, 1956.”
36) The issues involved in this case need to be decided keeping in view
the law laid down in the aforesaid three cases and the one cited infra.
37) Coming to the first question, in our considered opinion, the High
Court erred in holding that the daughter of late A. Radhakrishnan, i.e.,
Tmt. R. Kanjana was a necessary party to the eviction petition filed by the
appellants and hence failure to implead her rendered the eviction petition
as not maintainable. This finding of the High Court, in our view, is
against the law laid down by this Court in the case of Dhannalal (supra),
wherein it is laid down that it is not necessary to implead all the co-
owners in the eviction petition.
38) In the light of law laid down in the case of Dhannalal (supra), in
our view, it was not necessary for the appellants to implead the Tmt. R.
Kanjana – the daughter of late A. Radhakrishnan in the eviction petition.
Even otherwise, as rightly argued by learned counsel for the appellants,
the High Court should not have allowed respondent No.1 to raise such
objection for the first time in the revision because it was not raised in
the courts below. Be that as it may, the daughter having been later
impleaded in the proceedings, this objection was not even available to
respondent No.1.
39) In view of foregoing discussion, we can not concur with the finding
of the High Court and while reversing the finding hold that the eviction
petition can not be dismissed on the ground of non-joinder of Tmt. R.
Kanjana – the daughter of late A. Radhakrishnan and is held maintainable.
40) Now coming to the question as to whether the tenancy was between the
appellants and respondent No.1 or whether it was between Dhanapal and
respondent No.1, we are of the considered view that to begin with the
tenancy was between A. Radhakrishanan and respondent No.1 and on the death
of A. Radhakrishnan, it was created between the appellants being the Class-
I heirs of A. Radhakrishnan and respondent No.1 by operation of law.
41) In our opinion, Dhanapal was a power of attorney holder of A.
Radhakrishnan. He executed the tenancy agreement on behalf of the original
owner – A. Radhakrishnan in favour of respondent No.1. Such act done by
Dhanapal did not create any right, title and interest in his favour and nor
he ever asserted any such right in himself and indeed rightly qua A.
Radhakrishnan or the appellants in relation to suit premises. That apart,
respondent No.1 in clear terms admitted in his evidence and in the pleading
of cases filed by him against the appellants about his status as being the
tenant. In the light of this legal position, the High Court should have
held this issue in appellants’ favour.
42) The law relating to power of attorney is governed by the provisions
of the Power of Attorney Act, 1982. It is well settled therein that an
agent acting under a power of attorney always acts, as a general rule, in
the name of his principal. Any document executed or thing done by an agent
on the strength of power of attorney is as effective as if executed or done
in the name of principal, i.e., by the principal himself. An agent,
therefore, always acts on behalf of the principal and exercises only those
powers, which are given to him in the power of attorney by the principal.
Any act or thing done by the agent on the strength of power of attorney is,
therefore, never construed or/and treated to have been done by the agent in
his personal capacity so as to create any right in his favour but is always
construed as having done by the principal himself. An agent, therefore,
never gets any personal benefit of any nature. Applying the aforesaid
principle, this Court in Suraj Lamp and Industries Private Limited (2) vs.
State of Haryana & Anr., (2012) 1 SCC 656 held in paragraphs 20 and 21 as
under:
“20. A power of attorney is not an instrument of transfer in regard to any
right, title or interest in an immovable property. The power of attorney is
creation of an agency whereby the grantor authorises the grantee to do the
acts specified therein, on behalf of grantor, which when executed will be
binding on the grantor as if done by him (see Section 1-A and Section 2 of
the Powers of Attorney Act, 1882). It is revocable or terminable at any
time unless it is made irrevocable in a manner known to law. Even an
irrevocable attorney does not have the effect of transferring title to the
grantee.
21. In State of Rajasthan v. Basant Nahata, (2005) 12 SCC 77, this Court
held: (SCC pp. 90 & 101, paras 13 & 52)
“13. A grant of power of attorney is essentially governed by Chapter X of
the Contract Act. By reason of a deed of power of attorney, an agent is
formally appointed to act for the principal in one transaction or a series
of transactions or to manage the affairs of the principal generally
conferring necessary authority upon another person. A deed of power of
attorney is executed by the principal in favour of the agent. The agent
derives a right to use his name and all acts, deeds and things done by him
and subject to the limitations contained in the said deed, the same shall
be read as if done by the donor. A power of attorney is, as is well known,
a document of convenience.
* * *
52. Execution of a power of attorney in terms of the provisions of the
Contract Act as also the Powers of Attorney Act is valid. A power of
attorney, we have noticed hereinbefore, is executed by the donor so as to
enable the donee to act on his behalf. Except in cases where power of
attorney is coupled with interest, it is revocable. The donee in exercise
of his power under such power of attorney only acts in place of the donor
subject of course to the powers granted to him by reason thereof. He cannot
use the power of attorney for his own benefit. He acts in a fiduciary
capacity. Any act of infidelity or breach of trust is a matter between the
donor and the donee.”
An attorney-holder may however execute a deed of conveyance in exercise of
the power granted under the power of attorney and convey title on behalf of
the grantor.”
This was followed by this Court in Church of Christ Charitable Trust and
Educational Charitable Society vs. Ponniamman Educational Trust, (2012) 8
SCC 706 (para 20)
43) When we apply this well settled principle of law to the facts of the
case in hand, we are of the considered view that when Dhanapal, who was
acting as an agent of A. Radhakrishnan on the strength of power of
attorney, executed the tenancy agreement with respondent No. 1 in relation
to the suit premises then he did such execution for and behalf of his
principal - A Radhakrishnan, which resulted in creating a relationship of
landlord and tenant between A. Radhakrishnan and respondent No. 1 in
relation to the suit premises. In this execution, Dhanapal being an agent
did not get any right, title and interest of any nature either in the suit
premises or in tenancy in himself. The effect of execution of tenancy
agreement by an agent was as if A. Radhakrishnan himself had executed with
respondent No.1.
44) In view of the foregoing discussion, we are of the considered opinion
that the High Court was not right in holding that the tenancy in relation
to suit premises was with Dhanapal. We cannot thus concur with the finding
of the High Court and accordingly reverse the finding and hold that the
appellants were able to prove that the tenancy in relation to the suit
premises was between A. Radhakrishnan and respondent No.1 and on the death
of A. Radhakrishnan, it was created between the appellants and respondent
No.1 by operation of law which entitled the appellants to maintain the
eviction petition against respondent No.1 seeking his eviction on the
grounds available to them under the Act.
45) Since the High Court allowed the revision filed by respondent No.1 on
the aforementioned two grounds only, which we have reversed in preceding
paras, the revision petition filed by the respondent No.1 deserves to be
dismissed. That apart keeping in view the law laid down by this Court in
Hindustan Petroleum Corporation Limited Case (supra), the concurrent
findings of facts recorded by the Rent Controller and affirmed by the first
appellate Court in appellants’ favour on the issue of appellants bona fide
need for their personal residence and default committed by respondent No.1
in paying rent to the appellants were binding on the High Court.
46) We have also perused these findings with a view to find out as to
whether there is any perversity in these findings. We, however, find that
these findings are based on proper appreciation of evidence as is required
to be done in eviction matters and hence, they do not call for any
interference in this appeal.
47) Learned Counsel for the respondent made attempt to support the
impugned judgment and urged submissions but we were not impressed by any of
the submissions urged.
48) In the light of foregoing discussion, the appeal succeeds and is
hereby allowed. The impugned judgment is set aside and that of the judgment
of the first appellate Court dated 28.06.2001 in R.C.A. No. 5 of 2001 is
restored. As a consequence thereof, the eviction petition filed by the
appellants against respondent No.1 in relation to the suit premises is
allowed. Respondent No.1 is, however, granted three months’ time to vacate
the suit premises from the date of this judgment subject to furnishing of
the usual undertaking in this Court to vacate the suit premises within 3
months and further on depositing all arrears of rent (if there are any
arrears still due and not paid) till date at the same rate at which they
had been paying monthly rent to the appellants and would also deposit three
months’ rent in advance by way of damages for use and occupation. Let the
undertaking, arrears of rent, damages for three months and cost awarded by
this Court be deposited within 15 days from the date of this judgment. The
appellants on such deposit being made would be entitled to withdraw the
same after proper verification.
49) The appeal is accordingly allowed with costs which is quantified at
Rs.5000/- to be paid by respondent No.1 to the appellants.
.……...................................J.
[J. CHELAMESWAR]
………..................................J.
[ABHAY MANOHAR SAPRE]
New Delhi,
January 28, 2016.
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