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CASE NO.:

Appeal (civil) 5761 of 2007

PETITIONER:

M/s Nopany Investments (P) Ltd

RESPONDENT:

Santokh Singh (HUF)

DATE OF JUDGMENT: 10/12/2007

BENCH:

Tarun Chatterjee & P.Sathasivam

JUDGMENT:

J U D G M E N T

CIVIL APPEAL NO 5761 OF 2007

[Arising out of SLP [C] No. 9963 of 2007]

TARUN CHATTERJEE, J.

1. Leave granted.

2. This appeal has been preferred before us, assailing the judgment

and decree dated 19th of April, 2007, passed by the High Court of

Delhi, whereby, the High Court had dismissed the appeal of the

appellant, thereby affirming the judgments of the courts below

decreeing the eviction suit filed at the instance of the respondent

against the appellant.

3. The facts leading to the filing of this appeal may be stated as

follows.

4. On 16th of July, 1980, the appellant entered into a lease with Dr.

Santokh Singh HUF for a period of 4 years, with respect to the

property situated at N-112, Panchsheel Park, New Delhi (for short

"the suit premises"), at a monthly rent of Rs. 3500/-. Accordingly, at

the expiry of the afore said period of 4 years, a notice of eviction

dated 5th of April, 1984 was issued which was followed by filing an

Eviction petition No. 432 of 1984 before the Additional Rent

Controller by Jasraj Singh, claiming himself to be the Karta of Dr.

Santokh Singh HUF. The Additional Rent Controller passed an order

directing the appellant for payment of rent at the rate of Rs. 3500/-.

After coming into force of Section 6A of the Delhi Rent Control Act,

a notice dated 9th of January, 1992 was sent by Jasraj Singh, in the

above capacity, to the appellant for enhancement of rent by 10 percent

and also termination of tenancy of the appellant. In reply to this

notice, the appellant denied the right of the respondent to enhance the

rent. Another notice dated 31st of March 1992 was sent afresh by the

respondent notifying the appellant that the rent stood enhanced by 10

percent while the tenancy stood terminated w.e.f. 16/17th of July,

1992. The aforesaid eviction petition No. 432 of 1984 was withdrawn

on 20th of August, 1992 by Jasraj Singh. Thereafter, a notice dated 3rd

of September, 1992 was sent by Jasraj Singh asking the appellant to

vacate the suit property to which the appellant did not concede and

refused to vacate the same by a reply dated 24th of September, 1992.

On 6th of February, 1993, Dr. Santokh Singh HUF, through Jasraj

Singh, claiming himself to be the Karta of the HUF, instituted a suit

seeking eviction of the appellant from the suit premises. The trial

court decreed the respondent's suit for possession, against which an

appeal was preferred before the Additional District Judge, Delhi. The

first appellate court dismissed the appeal summarily. Against this

order of the first appellate court, a second appeal, being R.S.A. No.

146 of 2003, was preferred before the High Court of Delhi, which

remanded the matter to the first appellate court for fresh

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consideration. In pursuance of this direction of the High Court, the

first appellate court, after fresh consideration of the matter, affirmed

the judgment passed by the Trial court thereby dismissing the appeal

of the appellant herein. Being aggrieved and dissatisfied with the

order of the first appellate court, the appellant preferred a second

appeal, being R.S.A. No. 209 of 2005, before the High Court of Delhi,

which, however, was also dismissed. It is this decision of the High

Court of Delhi, which is impugned in this appeal and in respect of

which leave has already been granted.

5. The pivotal questions, inter alia, in the facts and circumstances

of this case, which warrant our determination are as follows:

(i) Whether Jasraj Singh could file the suit for eviction, in the

capacity of the Karta of Dr. Santokh Singh HUF, when,

admittedly, an elder member of the aforesaid HUF was

alive ?

(ii) Whether the High Court was right in concluding that the

first appellate court had duly dealt with all the issues

involved and re-appreciated evidence as provided under

O.41 R.31 of the Code of Civil Procedure (in short "the

CPC") ?

(iii) Whether the contractual tenancy between the landlord

and tenant came to an end merely by filing an Eviction

Petition and whether the landlord could seek

enhancement of rent simultaneously or post termination

of tenancy ?

(iv) Whether the landlord could issue a notice under Section

6A of the Delhi Rent Control Act, 1958 (in short "the

Act") for increase of rent without seeking leave of the

rent controller during the pendency of an order under

Section 15 of the Act directing the tenant to deposit rent

on a month to month basis ?

6. We have heard the learned counsel for the parties. As regards

the first issue, as noted hereinabove, the learned senior counsel Mr.

Gupta appearing on behalf of the appellant had questioned the

maintainability of the suit filed at the instance of Jasraj Singh,

claiming himself to be the Karta of Dr. Santokh Singh HUF. The

learned counsel Mr. Gupta strongly argued before us that in view of

the settled principal of law that the junior member in a joint family

cannot deal with the joint family property as Karta so long as the elder

brother is available, the respondent herein, who is admittedly a junior

member of the family, could not have instituted the eviction suit,

claiming himself to be the Karta of the family. In support of this

argument, the learned senior counsel Mr. Gupta has placed reliance on

the decisions of this court in Sunil Kumar and another Vs. Ram

Prakash and others [(1988) 2 SCC 77] and Tribhovan Das Haribhai

Tamboli Vs. Gujarat Revenue Tribunal and others [(1991) 3 SCC

442]. Before we look at the views expressed by the High Court on this

question, it would be pertinent to note the ratios of the two authorities

cited before us. In Sunil Kumar and another Vs. Ram Prakash and

others [supra], this court held as follows: -

"In a Hindu family, the Karta or Manager

occupies a unique position. It is not as if anybody

could become Manager of a joint Hindu family.

As a general rule, the father of a family, if alive,

and in his absence the senior member of the

family, is alone entitled to manage the joint

family property."

From a reading of the aforesaid observation of this court in Sunil

Kumar and another Vs. Ram Prakash and others [supra], we are

unable to accept that a younger brother of a joint hindu family would

not at all be entitled to manage the joint family property as the Karta

of the family. This decision only lays down a general rule that the

father of a family, if alive, and in his absence the senior member of

the family would be entitled to manage the joint family property.

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Apart from that, this decision was rendered on the question whether a

suit for permanent injunction, filed by co-parcerners for restraining

the Karta of a joint hindu family from alienating the joint family

property in pursuance of a sale agreement with a third party, was

maintainable or not. While considering that aspect of the matter, this

court considered as to when could the alienation of joint family

property by the Karta be permitted. Accordingly, it is difficult for us

to agree with Mr. Gupta, learned senior counsel appearing for the

appellant, that the decision in Sunil Kumar and another Vs. Ram

Prakash and others [supra] would be applicable in the present case

which, in our view, does not at all hold that when the elder member of

a joint hindu family is alive, the younger member would not at all be

entitled to act as a manager or Karta of the joint family property.

In Tribhovandas's case [supra], this court held as follows:

"The managership of the joint family property

goes to a person by birth and is regulated by

seniority and the karta or the manager occupies a

position superior to that of the other members. A

junior member cannot, therefore, deal with the

joint family property as manager so long as the

karta is available except where the karta

relinquishes his right expressly or by necessary

implication or in the absence of the manager in

exceptional and extraordinary circumstances such

as distress or calamity affecting the whole family

and for supporting the family or in the absence of

the father whose whereabouts were not known or

who was away in remote place due to compelling

circumstances and that his return within the

reasonable time was unlikely or not

anticipated."(Emphasis supplied)

From a careful reading of the observation of this court in

Tribhovandas's case [supra], it would be evident that a younger

member of the joint hindu family can deal with the joint family

property as manager in the following circumstances: -

(i) if the senior member or the Karta is not available;

(ii) where the Karta relinquishes his right expressly or by

necessary implication;

(iii) in the absence of the manager in exceptional and extra

ordinary circumstances such as distress or calamity

affecting the whole family and for supporting the

family;

(iv) in the absence of the father: -

(a) whose whereabouts were not known or

(b) who was away in a remote place due to compelling

circumstances and his return within a reasonable

time was unlikely or not anticipated.

Therefore, in Tribhovandas's case [supra], it has been made clear that

under the aforesaid circumstances, a junior member of the joint hindu

family can deal with the joint family property as manager or act as the

Karta of the same.

7. From the above observations of this court in the aforesaid two

decisions, we can come to this conclusion that it is usually the Father

of the family, if he is alive, and in his absence the senior member of

the family, who is entitled to manage the joint family property. In

order to satisfy ourselves whether the conditions enumerated in

Tribhovandas's case [supra] have been satisfied in the present case,

we may note the findings arrived at by the High Court, which are as

follows: -

(i) Jasraj Singh, in his cross examination before the trial court had

explained that his eldest brother Dhuman Raj Singh (supposed to be

the Karta of the HUF) has been living in United Kingdom for a long

time. Therefore, the trial court had rightly presumed that Dhuman Raj

Singh was not in a position to discharge his duties as Karta of the

HUF, due to his absence from the country.

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(ii) The respondent produced the Xerox copy of the power of

attorney given by Dhuman Raj Singh to Jasraj Singh.

(iii) The trial court relied upon the law discussed in the books

namely, "Principles of Hindu Law" by Mulla and Mulla and "Shri

S.V. Gupta on Hindu Law", wherein it has been observed that

ordinarily, the right to act as the Karta of HUF is vested in the senior-

most male member but in his absence, the junior members can also act

as Karta.(Emphasis supplied)

(iv) There was no protest by any member of the joint hindu family

to the filing of the suit by Jasraj Singh claiming himself to be the

Karta of the HUF. There was also no whisper or protest by Dhuman

Raj Singh against the acting of Jasraj Singh as the Karta of the HUF.

It may also be noted that the High Court relied on the decision of this

court in Narendrakumar J. Modi Vs. Commissioner of Income Tax,

Gujarat II, Ahmedabad [(AIR) 1976 SC 1953], wherein it was held

that so long as the members of a family remain undivided, the senior

member of the family is entitled to manage the family

properties\005\005\005and is presumed to be manager until contrary is

shown, but the senior member may give up his right of management,

and a junior member may be appointed manager. Another decision in

Mohinder Prasad Jain Vs. Manohar Lal Jain [2006 II AD (SC)

520], was also relied upon by the High Court wherein it has been held

at paragraph 10 as follows:

"10. A suit filed by a co-owner, thus, is

maintainable in law. It is not necessary for the co-

owner to show before initiating the eviction

proceeding before the Rent Controller that he had

taken option or consent of the other co-owners.

However, in the event, a co-owner objects thereto,

the same may be a relevant fact. In the instant

case, nothing has been brought on record to show

that the co-owners of the respondent had objected

to eviction proceedings initiated by the respondent

herein."

Having relied on the aforesaid decisions of this Court and a catena of

other decisions and the findings arrived at by it, as noted hereinabove,

the High Court rejected the argument of the appellant that Jasraj Singh

could not have acted as the Karta of the family as his elder brother,

namely, Dhuman Raj Singh, being the senior most member of the

HUF, was alive. In view of our discussions made herein earlier and

considering the principles laid down in Tribhovandas's case [supra]

and Sunil Kumar's case [supra], we neither find any infirmity nor do

we find any reason to differ with the findings arrived at by the High

Court in the impugned judgment. It is true that in view of the

decisions of this court in Sunil Kumar's case [supra] and

Tribhovandas's case [supra], it is only in exceptional circumstances,

as noted herein earlier, that a junior member can act as the Karta of

the family. But we venture to mention here that Dhuman Raj Singh,

the senior member of the HUF, admittedly, has been staying

permanently in the United Kingdom for a long time. In

Tribhovandas's case [supra] itself, it was held that if the Karta of the

HUF was away in a remote place, (in this case in a foreign country)

and his return within a reasonable time was unlikely, a junior member

could act as the Karta of the family. In the present case, the elder

brother Dhuman Raj Singh, who is permanently staying in United

Kingdom was/is not in a position to handle the joint family property

for which reason he has himself executed a power of attorney in

favour of Jasraj Singh. Furthermore, there has been no protest, either

by Dhuman Raj Singh or by any member of the HUF to the filing of

the suit by Jasraj Singh. That apart, in our view, it would not be open

to the tenant to raise the question of maintainability of the suit at the

instance of Jasraj Singh as we find from the record that Jasraj Singh

has all along been realizing the rent from the tenant and for this

reason, the tenant is now estopped from raising any such question. In

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view of the discussions made herein above, we are, therefore, of the

view that the High Court was fully justified in holding that the suit

was maintainable at the instance of Jasraj Singh, claiming himself to

be the Karta of the HUF.

8. This takes us to the next issue namely, whether the High Court

was right in concluding that the first appellate court had duly dealt

with all the issues involved and re-appreciated the evidence as

provided under O.41 R.31 of the CPC. The learned senior counsel for

the appellant Mr. Gupta sought to argue that the High Court had erred

in holding that the first appellate court had acted in due compliance

with O.41 of the CPC. It may be noted that the High Court, while

concluding as aforesaid, came to the following findings: -

1) The first appellate court has passed a speaking order and it is

apparent that it has applied its mind.

2) The First appellate court had to deal with the arguments which

were advanced before it. It had rightly given the short shrift to all

those arguments which did not inject some coherence.

3) The learned counsel for the appellant had failed to point out the

issues regarding which the First Appellate court had not given its own

conclusion.

4) The learned counsel for the appellant had also failed to show as

to how the authority cited viz., Santosh Hazari Vs. Purushottam

Tiwari (dead) by LRs. [AIR 2001 SC 965] was applicable to the facts

of the case.

9. In our view, it is difficult for us to set aside the findings of the

High Court on the question whether the first appellate court, while

deciding the questions of fact and law, had complied with the

requirements under O.41 of the CPC. We are in agreement with the

findings of the High Court as on a perusal of the judgment of the first

appellate court, it does not appear to us that the findings arrived at by

the first appellate court affirming the judgment of the trial court on

any issue were either very cryptic or based on non-consideration of

the arguments advanced by the parties before it. In support of this

contention, before the High Court, the appellant had relied on a

decision of this court in the case of Santosh Hazari [supra], but in this

appeal, the learned senior counsel for the appellant Mr. Gupta has

strongly relied on a decision of this court in the case of Madhukar &

Ors. Vs. Sangram & Ors. [(2001) 4 SCC 756] and contended that

since the judgment of the first appellate court was cryptic in nature

and the first appellate court had not dealt with the issues involved in

the appeal, the same was liable to be set aside and the matter was

liable to be sent back to the first appellate court for rehearing. We are

unable to accept this contention of the learned senior counsel for the

appellant. Before we consider the findings of the first appellate court

as well as the High Court on this issue, we must keep on record that in

Madhukar & Ors. Vs. Sangram & Ors. [supra], this court had to

reverse the findings of the High Court because the High Court erred in

allowing the plaintiff/respondents first appeal without even

considering the grounds on which the trial court had dismissed the suit

and without discussing the evidence on record. On the same lines, the

decision of this court in Santosh Hazari's case [supra] was based. In

our view, the aforesaid two decisions of this court are distinguishable

on facts with the present case. A perusal of the judgment of the first

appellate court after remand would clearly indicate that the same was

neither cryptic nor based on non-consideration of the issues involved

in the appeal. Apart from that, it has to be kept in mind that the

decisions of this court in Madhukar & Ors. Vs. Sangram & Ors.

[supra] and Santosh Hazari's case [supra], were considering the

reversal of the findings of fact of the trial court. In the present case,

the first appellate court had affirmed the findings of the trial court,

which were based on total consideration of the material evidence \026

documentary and oral on record. It is well settled that in the case of

reversal, the first appellate court ought to give some reason for

reversing the findings of the trial court whereas in the case of

affirmation, the first appellate court accepts the reasons and findings

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of the trial court. In any view of the matter, from a perusal of the

judgment of the first appellate court, it is clear that it reflects

conscious application of mind and has recorded the findings supported

by reason on all the issues arising along with the contentions put

forward by the parties. In Santosh Hazari's case [supra], this court

observed: -

"The task of an appellate court affirming the findings

of the trial court is an easier one. The appellate court

agreeing with the view of the trial court need not

restate the effect of the evidence or reiterate the

reasons given by the trial court; expression of general

agreement with the reasons given by the court,

decision of which is under appeal, would ordinarily

suffice." (Emphasis supplied).

Again, in Madhukar & Ors. Vs. Sangram & Ors. [supra], this court

had to set aside the judgment of the High Court because the first

appellate court was singularly silent as to any discussion, either of the

documentary or the oral evidence. In addition, this court in that

decision was of the view that the findings of the first appellate court

were so cryptic that none of the relevant aspects were noticed. In this

background, this court at paragraph 8 observed as follows: -

"Our careful perusal of the judgment in the first

appeal shows that it hopelessly falls short of

considerations which are expected from the court of

first appeal. We, accordingly set aside the impugned

judgment and decree of the High Court and remand

the first appeal to the High Court for its fresh

disposal in accordance with law."

In view of our discussions made hereinabove, we are, therefore,

unable to agree with the learned senior counsel for the appellant Mr.

Gupta that the High Court was not justified in holding that the

findings of the first appellate court were in compliance with O.41 of

the CPC. That apart, the learned senior counsel for the appellant Mr.

Gupta could not satisfy us or even point out the specific issues which,

in his opinion, had been left to be addressed by the first appellate

court. In view of the discussions made herein above, we are, therefore,

of the view that no ground was made out by the appellant to set aside

the judgment of the High Court on the question whether the judgment

of the first appellate court was liable to be set aside for non-

compliance with the mandatory provisions of O.41 of the CPC.

10. Let us now deal with Issue Nos. 3 and 4. Since both these issues

are interlinked, we shall deal with these two issues together. Let us

first consider whether the respondent landlord could issue a notice

under Section 6A of the Act for increase of rent when the petition for

eviction of the appellant was pending before the Additional Rent

Controller and when there had been an order to the tenant for deposit

of rent on a month to month basis under Section 15 of the Act. In our

view, the first appellate court as well as the High Court were fully

justified in holding that it was open to a landlord to increase the rent

of the suit premises by 10% after giving a notice under section 6A of

the Act. In this connection, it would be appropriate to reproduce

Section 6A of the Act which talks about revision of rent and Section 8

of the Act which contemplates notice of increase of rent. Section 6A

runs as under: -

"6A. Revision of rent - Notwithstanding anything

contained in this Act, the standard rent, or, where no

standard rent is fixed under the provisions of this Act

in respect of any premises, the rent agreed upon

between the landlord and the tenant, may be

increased by ten per cent every three years".

From a bare perusal of this provision under Section 6A of the Act, it is

evident that by this statutory provision, the standard rent and in cases

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where no standard rent is fixed under the Act in respect of any

premises, the rent agreed upon between the landlord and the tenant,

may be increased by 10% every three years. It is, therefore, open to

the landlord under Section 6A of the Act to increase the rent agreed

upon between him and the tenant by 10 % every three years,

irrespective of the fact that an eviction proceeding is pending and an

order under Section 15 of the Act has been passed by the Additional

Rent Controller except that when a land lord wishes to so increase the

rent of any premises, a notice of increase of rent, as provided under

Section 8 of the Act, has to be served on the tenant thereby intimating

the tenant his intention to make the increase. Section 8 of the Act runs

as under: -

"Notice of increase of rent \026 (1) Where a landlord

wishes to increase the rent of any premises, he shall

give the tenant notice of his intention to make the

increase and in so far as such increase is lawful under

this Act, it shall be due and recoverable only in respect

of the period of the tenancy after the expiry of thirty

days from the date on which the notice is given.

(2) Every notice under sub-section (1) shall be in

writing signed by or on behalf of the landlord and given

in the manner provided in section 106 of the Transfer of

Property Act, 1982 (4 of 1882)."

Therefore, if the landlord wishes to increase the rent of any premises

at any time, only a notice expressing his intention to make such

increase is required to be given to the tenant and Section 6A of the

Act, as noted herein earlier, clearly permits the landlord to increase

the rent by 10% every three years. In this view of the matter, after the

completion of three years, it was open to the landlord at any point

even during the pendency of an eviction petition to increase the rent of

the suit premises after giving the prescribed notice to the tenant.

11. At this stage, we may also consider Section 3(c) of the Act,

which bars the application of the Act to the premises whose monthly

rent exceeds Rs. 3500/-. Section 3(c) of the Act runs as under:-

"Act not to apply to certain premises \026 Nothing in

this Act shall apply \026

(a) \005\005\005\005\005\005..

(b) \005\005\005\005\005\005..

(c) to any premises, whether residential or not,

whose monthly rent exceeds three thousand and five

hundred rupees;"

The Delhi Rent Control Act, 1958 was amended by Act No. 52 of

1988, which came into effect from 1st of December, 1988. By this

amendment of the 1958 Act on 1st of December, 1988, Section 3(c)

with other amendments was brought into force. Section 3(c) of the

amended act provides that the provisions of the Act will not apply to

any premises whose monthly rent exceeds Rs. 3500/- from the date of

coming into operation of this act. In D.C. Bhatia and others Vs.

Union of India and another [(1995) 1SCC 104], while considering

the parent act and the amending act, this court held that the objects of

the amending act are quite different from the objects of the parent act.

It observed that one of the objects of the amending act was to

rationalize the rent control law by bringing about a balance between

the interest of landlords and tenants. It was also observed that the

object was not merely to protect the weaker section of the community.

The Rent Act had brought to a halt house-building activity for letting

out. This court also made an observation that many people with

accommodation to spare did not let out the accommodation for the

fear of losing the accommodation. As a result of all these, there was

acute shortage of accommodation which caused hardship to the rich

and the poor alike and that in the background of this experience, the

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amending act of 1988 was passed. In paragraph 28 of the aforesaid

decision in D.C. Bhatia's case [supra], this court observed as follows:

-

"In order to strike a balance between the interests

of the landlords and also the tenants and for giving

a boost to house-building activity, the legislature

in its wisdom has decided to restrict the protection

of the Rent Act only to those premises for which

rent is payable up to the sum of Rs 3500 per month

and has decided not to extend this statutory

protection to the premises constructed on or after

the date of coming into operation of the Amending

Act for a period of ten years. This is a matter of

legislative policy. The legislature could have

repealed the Rent Act altogether. It can also repeal

it step by step. It has decided to confine the

statutory protection to the existing tenancies whose

monthly rent did not exceed Rs 3500."

Considering the aforesaid reasons which led to the amending act of

1988, it is clear that the legislature intended to strike a balance by

allowing the landlords to evict a tenant, who could pay more than Rs.

3500/- per month, from the tenanted premises.

12. In the present case, after serving a notice under Section 6A read

with Section 8 of the Act, the protection of the tenant under the Act

automatically ceased to exist as the rent of the tenanted premises

exceeded Rs. 3500/- and the bar of Section 3(c) came into play. At the

risk of repetition, since, in the present case, the increase of rent by

10% on the rent agreed upon between the appellant and the

respondent brought the suit premises out of the purview of the Act in

view of Section 3(c) of the Act, it was not necessary to take leave of

the rent controller and the suit, as noted herein above, could be filed

by the landlord under the general law. The landlord was only required

to serve a notice on the tenant expressing his intention to make such

increase. When the eviction petition was pending before the

Additional Rent Controller and the order passed by him under Section

15 of the Act directing the appellant to deposit rent at the rate of Rs.

3500/- was also subsisting, the notice dated 9th of January, 1992 was

sent by the respondent to the appellant intimating him that he wished

to increase the rent by 10 percent. Subsequent to this notice, another

notice dated 31st of March, 1992 was sent by the respondent

intimating the appellant that by virtue of the notice dated 9th of

January, 1992 and in view of Section 6A of the Act, the rent stood

enhanced by 10 percent i.e. from Rs. 3500/- to Rs. 3850/-. It is an

admitted position that the tenancy of the appellant was terminated by

a further notice dated 16/17th of July, 1992. Subsequent to this, the

eviction petition No. 432 of 1984 was withdrawn by the respondent on

20th of August, 1992 and the suit for eviction, out of which the present

appeal has arisen, was filed on 6th of February, 1993. That being the

factual position, it cannot at all be said that the suit could not be filed

without the leave of the Additional Rent Controller when, admittedly,

at the time of filing of the said suit, the eviction petition before the

Additional Rent Controller had already been withdrawn nor can it be

said that the notice of increase of rent and termination of tenancy

could not be given simultaneously, when, in fact, the notice dated

16/17th of July, 1992 was also a notice to quit and the notice intending

increase of rent in terms of Section 6A of the Act was earlier in date

than the notice dated 16/17th of July, 1992. In any view of the matter,

it is well settled that filing of an eviction suit under the general law

itself is a notice to quit on the tenant. Therefore, we have no hesitation

to hold that no notice to quit was necessary under Section 106 of the

Transfer of Property Act in order to enable the respondent to get a

decree of eviction against the appellant. This view has also been

expressed in the decision of this court in V. Dhanapal Chettiar Vs.

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Yesodai Ammal [AIR (1979) SC 1745].

13. Before parting with this judgment, we may deal with a decision

of this court in the case of Ambalal Sarabhai Enterprises Ltd. Vs.

Amrit Lal & Co. and another [(2001) 8 SCC 397] on which the

learned senior counsel for the appellant Mr. Gupta placed strong

reliance. Relying on this decision, Mr. Gupta sought to argue that the

amendment of the Act being not retrospective in operation, in view of

Section 6 of the General Clauses Act, it would not affect the pending

eviction proceeding, which would continue as if the act had not been

amended and therefore, the suit filed by the respondent for eviction

under the general law without taking leave from the Additional Rent

Controller could not be said to be maintainable. In our view, the

decision of this court in Ambalal Sarabhai's case [supra] does not

support the appellant but it supports the respondent. In that decision,

this court held that the vested right of the landlord under the general

law continues so long it is not abridged by the protective legislation,

namely, the Rent Act, but the moment this protection is withdrawn,

the vested right of the landlord reappears which can be enforced by

him. Such being the position, we are, therefore, of the view that since

the eviction petition filed by the respondent before the Additional

Rent Controller was withdrawn and the tenancy was terminated by a

fresh notice to quit and in view of the increase of rent wished by the

landlord in compliance with Section 6A read with Section 8 of the

Act, there cannot be any difficulty to hold that the suit in fact was

maintainable under the general law. That being the position, the

decision of this court in Ambalal Sarabhai's case [supra] can not at

all be applicable in favour of the appellant and which, in view of our

discussions made hereinabove, can only be applicable in favour of the

respondent.

14. For the reasons aforesaid, none of the grounds urged by the

learned senior counsel for the appellant Mr. Gupta can be accepted by

us to interfere with the impugned judgment of the High Court.

Accordingly, the appeal fails and is hereby dismissed. However,

considering the facts and circumstances of the case, we grant time to

the appellant to vacate the premises in question by 29th of February,

2008 provided the appellant files an usual undertaking in this regard

in this court within a fortnight from this date. In default, it will be

open to the respondent to proceed to execute the decree for eviction of

the appellant from the suit premises in accordance with law. There

will be no order as to costs.