1.
That the respondent herein
had filed an eviction petition against the appellants under Section 14(l)(a) of
the Delhi Rent Control Act alleging therein that by an agreement to sell
dated.................... he had agreed to sell the whole of the property to
the appellants for a consideration of Rs..................... and besides the
aforesaid consideration the appellants were liable to pay un-earned increase as
also damages for mis-use of the floor which was being used for commercial
purposes by ground floor tenant. It was further alleged that alongwith the
agreement to sell the appellants also got a Rent Agreement signed on the same
day i.
e......................
from the respondent for letting out the first floor and second floor of the
property at a rent of Rs..................... per month. It was further alleged
that although the agreement was executed on..................... it was stated
therein that the rent was with effect from .................... and the
agreement was also purported to have executed on..................... The
respondent further stated that he was not willing to execute the agreement
alongwith the receipt but taking undue advantage, the appellant got the said
agreement executed from him. The respondent claimed in the eviction petition
that arrears of rent were due with effect from.................... and in spite
of the demands of the respondent the same had not been paid by the appellants.
2.
That the appellants filed
their written statement to the Eviction Petition and stated that the eviction petition has
been filed on the basis of the Rent Agreement dated.................... as
mentioned in para 14 of the petition but in the suit for Specific Performance
of the Agreement to sell dated..................... the respondent had taken stand
in his written statement that the said rent agreement was spurious and
non-existance. He further alleged in the written statement that there was no
rent advance or any security money given by the appellant to him on 16th
August, 1980. The appellants further stated that as per the terms of the
agreement to sell, the sale was to be completed latest by 31st January, 1981,
and the appellants have already paid a sum of Rs.................... out of the
total sale consideration of Rs..................... and therefore, the parties
have intended that the sale will be completed by.................... or in any
case in the month of..................... For this reason, the appellants
stated that the respondent was not entitled to receive any rent after the expiry
of .................... th day of.................... The appellants also filed
a copy of the written statement which had been filed by the respondent in suit
No..................... entitled as.................... which was filed by the appellants for
specific performance of the agreement to sell against the respondent and was
pending in this Hon’ble high Court. In the said written statement the
respondent had taken definite stand that no Rent Agreement had executed
on.................... th.................... or even thereafter. He had
further stated that the alleged Rent Agreement was spurious and non-existance.
The respondent also mentioned in the Written Statement that the vacant
possession of the first floor and the Barasati floor was handed over to the
appellants on..................... when the appellants made payment of
Rs..................... and the Agreement to sell was executed. The respondent
had further mentioned that the four Rent Receipts were also signed by him
on..................... Rent Agreement and the four said receipts were signed
because the parties expected upto..................... that the sale permission
would be forth-coming from the Land & Development Office. In view of this
categorical stand taken by the respondent in the suit for Specific Performance
which has been filed by the appellants, it was submitted before the Addl. Rent
Controller that of his own showing that there was no relationship of Landlord
and Tenant between the parties and the eviction petition was liable to be
dismissed and therefore no order could be passed under Section 15(1) of the
Delhi Rent Control Act.
3.
That after hearing the
arguments of the parties and after seeing the plea which was taken by the
respondent in his written statement as referred to above, the learned
Additional Rent Controller deferred the passing of the order under Section
15(1) of the Delhi Rent Control Act vide his order dated....................
4.
That the respondent filed an
appeal against the said order which was heard and decided by the learned Rent
Control Tribunal. The appeal was allowed and an order under Section 15(1) was
passed by the Rent Control Tribunal directing the appellants to pay the arrears
of rent and also to pay monthly rent month by month in terms of the order. The
said order is illegal and contrary to the facts and the same is liable to be
set-aside on the following amongst other grounds: —
(a)
Because the learned Rent
Control Tribunal has not considered the place taken by respondent in his
written statement filed in the suit for specific performance pending in this
Hon’ble Court. In the said written statement the plea of the respondent was
that there was no rent agreement executed between the parties and the
possession of the first floor and second floor had been given to the appellants
after execution of the agreement to sell and on receipt of the sale
consideration of
Rs.....................
These facts clearly prove that the appellant was not accepting any rent
agreement and therefore he was estopped from filing the eviction petition
against the appellants;
(b)
Because the findings of the
learned Rent Control Tribunal to the effect that the respondent has not
disputed execution of the Rent Agreement as per the pleadings of the present
case are not correct because the case of the appellants was that since in the
suit for specific performance of the agreement to sell the respondent had taken
plea that there was no rent agreement executed between the parties, he could
not be allowed to blow hot and cold and eviction petition was liable to be
dismissed;
(c)
Because the learned Rent
Control Tribunal has not appreciated the defence of the appellants. The learned
Rent Control Tribunal has erred in holding that the respondent had disputed
only the date ofthe execution of the rent agreement and not rent agreement as
such. These findings are clearly contrary to the averments made by the respondent
in his written statement filed in the suit for specific performance;
(d)
Because the learned Rent
Control Tribunal has erred in holding that the relationship of the Landlord and
Tenant between the parties was not in dispute in the present case. The
appellant had clearly pointed out that on his own written statement the
respondent had denied execution of any rent agreement and therefore it could
not be said that there was no dispute in respect of the relationship of the
landlord and Tenant between the parties;
(e)
Because it is well settled
law that in case there is any serious dispute between the parties with respect
to the existence of the relationship of Landlord and Tenant then no order can
be passed under Section 15(1) of the Delhi Rent Control Act;
(f)
Because the judgments relied
upon by the learned Rent Control Tribunal are not applicable to the facts of
the present case. In the present case the appellants were not only relying upon
the existence of an Agreement to Sell between the parties but they had further
placed on record the written statement filed by the respondent in which the
respondent himself had denied execution of any Rent Agreement and had admitted
that the possession of the premises in dispute had been delivered on the
execution of the Agreement to Sell and on receipt of the sale consideration to
the tune of Rs..................... In view of these facts, the judgment
referred to by the learned Rent Control Tribunal has no application on the
facts of the present case;
(g)
Because if was pointed out
by the appellants that the respondent himself had admitted in his written
statement that the possession of the premises in dispute had been delivered to
the appellant in part performance of the agreement and therefore, Section 53(a)
of the Transfer of Property Act was attracted. The observation and the findings
of the learned Rent Control Tribunal to the effect that the possession of the
premises in dispute was given on the basis of the Rent Agreement are not based
on any evidence and are clearly contrary to the admission of the respondent;
(h)
Because the learned Rent
Control Tribunal ought to have held that the respondent was not entitled to
withdraw admission which he had already made and filed in the suit pending in
the High Court;
(i)
Because the findings of the
learned Rent Control Tribunal that the appellants were tenants in the premises
and are liable to pay the rent are contrary to the stand taken by the
respondent and therefore are liable to be set-aside;
(j)
Because in any case it was
submitted that the respondent was delaying execution of the sale deed in favour
of the appellants and after taking huge amount from the appellants as sale
consideration he was not entitled to receive any rent from the appellants after
stipulated date when the sale deed was to be executed by the respondent in
favour of the appellants;
(k)
Because the question whether
the respondent was avoiding execution of sale deed in favour of the appellants
was a relevant consideration and could be decided on evidence and it was in the
interest of justice that passing of the order under Section 15(1) of the Delhi
Rent Control Act was deferred till that period;
(1) Because the order under
appeal raises a substantial question of law in as much as the order passed by
the Rent Control Tribunal is without jurisdiction because in his admission made
in written statement filed in the civil suit the respondent had admitted that
there was no Rent Agreement and the possession of the premises in dispute was
delivered to the appellants on execution of the Agreement to Sell;
(m)Because
the Rent Control Tribunal had adopted entirely an erroneous approach to decide
the appeal; and
(n) Because
the order under appeal is unjust.
It
is therefore, respectfully prayed that the appeal may be accepted, the order
under appeal may be reversed and set-aside.
Place....................
Dated.................... Advocate for the
Appellants
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