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1986 DIGILAW 323 (DEL)

J. L. JHANB v. SHEELA DEVI

1986-09-24

SUNANDA BHANDARE

body1986
Sunanda Bhandare, J. ( 1 ) THIS second appeal is directed against the judgment of the Additional Rent Controller dated 1st August 1986 and the Rent Control Tribunal dated 23rd August 1986 whereby both the courts below allowed the objections filed by respondent no. 2 under Section 25 of the Delhi Rent Control Act read with Section 144 and 151 of the Civil Procedure Code. and ordered restituation of the tenanted premises to respondent No. 1. ( 2 ) THE facts of the case lie in a very narrow compass. Shri J. L. Jhanb obtained on order of eviction against one Smt. Sheela Devi on 25th September 1985 in respect of the entire ground floor, except passage for approaching the second floor and third floor of premises bearing no 28/12 East Patel Nagar, New Delhi including the garrage in which respondent no. 2 was carrying on business in the name and style of M/s. Kerala Concern. In execution of that order respondent no. 2 was thrown out of the shop on 2nd July 1986 and vacant possession was given to the attorney of the decree holder. Thereafter, respondent no. 2 filed objections on 5th July 1986 praying that the eviction order passed on the basis of fraud committed on the court by the attorney of the decree holder be quashed and set aside and the objector be restored back in possession. In the objections, respondent no. 2 took several pleas and inter alia asserted that respondent no. 2 is a tenant in his own right and the question of bis tenancy had been finally settled by an appropriate court in a previous litigation. It was also contended that the appellant herein had filed separate eviction petition being S. No. 8 of 1984 against respondent no. 2 before the Additional Rent Controller, Delhi which is still pending Respondent no. 2, therefore, claimed an independent right as a tenant and prayed that possession be restored back to him. ( 3 ) A preliminary objection regarding maintainability of this application under Section 25 of the Delhi Rent Control Act read with Section 144 and 151 Civil Procedure Code. was taken by the appellant herein before the -Additional Rent Controller. The Additional Rent Controller by his order dated 1st August 1986 held that the application under Section 25 of the Delhi Rent Control Act was maintainable and respondent no. was taken by the appellant herein before the -Additional Rent Controller. The Additional Rent Controller by his order dated 1st August 1986 held that the application under Section 25 of the Delhi Rent Control Act was maintainable and respondent no. 2 is a tenant in the garrage at the ground floor of the suit premises in his own right and, therefore, ordered restoration of possession to him. Against this order, the appellant herein, filed an appeal before the Rent Control Tribunal on 23rd August 1986. Before the Rent Control Tribunal the appellant did not assail the finding of the Additional Rent Controller regarding the maintainability of the application under Section 25 of the Delhi Rent Control Act, however asserted that the finding that the original order was obtained by the appellant by fraud was not correct. ( 4 ) SINCE the concurrent findings of fact cannot be gone into in a second appeal, in this Court the argument was restricted only to the question of maintainability of the application under Section 25 of the Delhi Rent Control Act read with Section 144 and 151 Civil Procedure Code. ( 5 ) IT was contended by the learned counsel for the appellant that if respondent no. 2 was aggrieved the only remedy open to him was to file an objection by way of an application under Order 21 Rule 99 for which the procedure prescribed under Order 21 Rules 100 and 101 of the Civil Procedure Code. had to be followed. It was submitted that an application under Section 25 was not maintainable. It was further submilted that respondent no. 2 having pleaded in previous proceedings that be was a tenant of Smt. Sheela Devi he was estopped from claiming an independent tenancy under the present appellant. Learned counsel referred to Smt. Rattan Devi v. Shrl Bal Krishan, (1978) 4 DLT 183 and Shyam Kak v. J. P. Gupta and Another, 24 (1983) D LT. 12 in support of his contention that the objections could be raised by respondent no. 2 under Order 21 Rule 99 only and by no other means. Learned counsel referred to Smt. Rattan Devi v. Shrl Bal Krishan, (1978) 4 DLT 183 and Shyam Kak v. J. P. Gupta and Another, 24 (1983) D LT. 12 in support of his contention that the objections could be raised by respondent no. 2 under Order 21 Rule 99 only and by no other means. Learned counsel assailed the judgment of the Additional Rent Controller and contended that the Additional Rent Controller had wrongly relied on a Division Bench judgment of this Court in Vidyawati v. Takam Das, 1974 R. L. R. 23 because the position in law had substantially changed thereafter in view of the amendment of Code of Civil Procedure in the year 1976 and now the new procedure as prescribed under Order 21 Rules 100 and 101 had to be followed before any person could be put back in possession. ( 6 ) ON behalf of respondent no. 2 it was vehemently contended that the appellant herein had played a fraud on the court by obtaining an order of eviction against Smt. Sheela Devi. The eviction order was obtained by the appellant against Smt. Sheela Devi who was the wife of the appellant and mother of Dr. Chander Prakash who is the power of attorney and son of the appellant. It was contended that in previous proceedings between the parties it was conclusively held by a competent court that respondent no. 2 was the tenant under Smt. Sheela Devi. A review petition filed by the appellant against this order was dismissed. Another application for eviction was filed against respondent no. 2 by the appellant through his power of attorney which was pending in the Court of the Additional Rent Controller and in which it was alleged that respondent no. 2 was the tenant of the appellant. In that case, written statement and reply was filed by respondent no. 2 and after the impugned judgment of the Rent Control Tribunal was passed, and after notice to show cause was issued by this Court in the present second appeal, the said eviction petition was withdrawn by the power of attorney of the appellant. ( 7 ) THIS being a second appeal the only question that has to be decided is whether the application under Section 25 of the Delhi Rent Control Act moved by respondent no. 2 objecting to the decree for eviction was maintainable as filed. ( 7 ) THIS being a second appeal the only question that has to be decided is whether the application under Section 25 of the Delhi Rent Control Act moved by respondent no. 2 objecting to the decree for eviction was maintainable as filed. To my mind, this question is covered by the judgment of the Division Bench of this Court in Vidyawanti s case (supra ). In that case it was held that in view of Section 37 (2) and Section 42 of the Delhi Rent Control Act the analogy of Order 21 Rule 89 of the Civil Procedure Code. has to be applied to a proper construction of Section 25 and it was observed by the Court thus :- "section 37 (2) of the Act provides that the Controller shall, in such a proceeding for eviction, follow, as far as may be. the practice and procedure of a Court of Small Causes and Section 42 of the Act provides that an order for eviction shall be executable by the Controller as a decree of a Civil Court and for this purpose the Controller shall have all the powers of a Civil court. The basic principles of the Procedure laid down in Order XXI Rule 35 and 36. Civil Procedure Code is that a decree or an order is binding only on the parties and not on a person who is not a party to the proceeding in which the order is passed. Similarly such an order can be executed only against the person against whom it is passed including all persons who claimed through the said judgment debtor. Under Rule 99 of Order XXI of the Civil Procedure Code a person in possession of the property on his own account and on account of some persons other than the judgment debtor can resist the execution of a decree for possession on the ground that he was not bound by the decree and cannobe dispossessed in execution thereof. If he is dispossessed, under rule 100 of Order XXI he can claim to be put back into possession. In view of Sections 37 (2) and 42 of the Act, the analogy of the above provisions of the Civil Procedure Code has to be applied to a proper construction of Section 25. If he is dispossessed, under rule 100 of Order XXI he can claim to be put back into possession. In view of Sections 37 (2) and 42 of the Act, the analogy of the above provisions of the Civil Procedure Code has to be applied to a proper construction of Section 25. " ( 8 ) THE Court in that case further held that a person who claims to be the real tenant of the landlord as distinguished from the person against whom the orders for possession has been passed in favour of the landlord claims a title which is independent within the meaning of the proviso. Because the order is binding only on the person against whom it was passed on the assumption that such a person was the tenant of the landlord. It is not binding on the person who claims to be thetenant of the landlord in bis own right and who does not claim through the person against whom the order was passed. ( 9 ) 9. In Deo Raj Gupta v. Daulat Ram Public Trust etc. , 1972 RLR. 62 this Court while dealing with the question whether an application under Section 25 in such proceedings is maintainable held as follows :- "the person claiming title independently of the landlord, however could net obviously be evicted on foot of or order contained against the landlord s tenant in a proceeding to which the person so claiming independent title was not made a party. It is to meet with this situation that the above proviso has been introduced into Section 25 which, but for the proviso, would make an order for eviction by a landlord against the tenant binding on all persons in possession of the premises. The legislature had to- provide for two situations :- (1) To avoid the hardship to the landlord by having to implead all persons in possession of the property inspite of the fact that he let out the premises to only single tenant and the other person had been inducted into the premises by the tenant and they or any of them had not corn plied with the procedure described under Section 18 of the Act: by giving notice to the landlord of their or his having been inducted into the premises by the tenant of the landlord. If such intimation was given the landlord would be bound to make them parties to his application for evicting the tenant even as in the absence of such a notice the landlord was not required to take any notice of their being in possession of anypart or whole of the premises which had been demised to the tenant But for such a provision the landlord would have had to face successive application under Section 25 of the Act by persons claiming to be in possession of the property deriving interest from the tenant. (2) To protect the interest of a person bona fide in possession of the whole or any portion of the premises in assertion of title independent of the landlord from being summarily affected by the landlord by reason of an order which he obtained against one he described to be as the tenant of the entire property. It was to provide for the kind of interests being safeguarded that Section 25 with the proviso was enacted. It is thus clear that if a person claimed a title independent of the landlord he could apply under Section 25 and request the Rent Controller to adjudge whether he was in possession in exercise of such independent title If the person claiming an independent title only put forward a claim on behalf of or derived from or who was the tenant of the landlord he could not invoke Section 25 of the Act and request the Rent Controller to adjudicate on such a claim " ( 10 ) THUS restoration of possession can be made on an application under Section 25 made by the tenant claiming independent right provided the procedure as prescribed under Order 21 Rules 100 and 101 is followed. In my opinion, the amendment of Order 21 Rules 100 and 101 of Civil Procedure Code. does not make any difference. ( 11 ) IN the present case from the record I find that the procedure as prescribed under Order 21 Rules 100 and 101 was substantially followed by the Additional Rent Controller and after considering the evidence adduced before him and the pleadings of the parties had given acategorical finding that respondent no. 2 is a tenant in his own right. Moreover, the question of jurisdiction of the Additional Rent Controller to order restoration of the property in dispute was not challenged in the first appellate Court. 2 is a tenant in his own right. Moreover, the question of jurisdiction of the Additional Rent Controller to order restoration of the property in dispute was not challenged in the first appellate Court. ( 12 ) I do not think that the authorities cited by the learned counsel for the appellant are applicable to the facts of the present case In Shyam Kak s case (supra) referred to by the learned counsel for the appellant the Court was only dealing with an application made under Article 227 of the Constitution of India and the question of maintainability of the application under Section 25 of the Delhi Rent Control Act was not before the Court. In Smt. Rattan Devi s case (supra) the application was rejected by the Court because the Tribunal in that case had nowhere given a finding that the objector was the tenant in his own right In that case therefore it was held that it was the duty of the Tribunal to give a clear finding whether the objector was the tenant in respect of the premises in dispute and mere possession was of no avail. ( 13 ) IN my opinion, therefore, the Additional Rent Controller bad not acted without jurisdiction and had rightly entertained the application moved by the respondent no. 2. The second appeal is, therefore, dismissed in limine. ( 14 ) BY order dated 26th August 1986 I had directed status quo to be maintained by the parties in regard to the posscssion of the premises. It was contended by the learned counsel for the appellant that scme other person namely Smt. Razia Sultan has already been inducted in the premises. This fact has been denied by the learned counsel for respondent no. 2. Since by both the orders dated 1st August 1986 and 23rd August 1986 respondent no. 2 was directed to be put back in possession and there is a concurrent finding of fact that the appellant had dispossessed respondent no. 2 from the disputed premises in a clandestine manner, I see no reason to very these orders. The trial court will ensure that the possession of the disputed premises is delivered back to respondent no. 2 by removing all obstructions and if necessary with police assistance. Since the second appeal is dismissed in limine, parties will bear their own costs.