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1993 DIGILAW 495 (DEL)

MUNNA LAL v. BIMLA WATI @ MAHARANI

1993-09-03

V.B.BANSAL

body1993
V. B. BANSAL ( 1 ) MUNNA Lal, petitioner has filed this petition against the Judgment dated 13/05/1992 of Shri K. S. Gupta, Rent Control Tribunal, Delhi, vide which, (he appeal of the petitioner against the order of eviction against him, passed by Additional Rent Controller, was dismissed. ( 2 ) FACTS leading to the filing of this petition may briefly be narratted as under:- Smt. Bimla Wati alias Maharani filed an application for eviction against Munna Lal under Section 14 (l) (a) (c) and (j) of the Delhi Rent Control Act, 1958 (hereinafter referred to as "the Act"), from the disputed premises in House No. IX/1741, Kailash Nagar, Delhi. It was inter-alia pleaded that the respondent has been in arrears of rent @ Rs. 350. 00 per month w. e. f. 03/01/1985 and the respondent was also to pay electricity charges @ Rs. 50. 00 per month from the same date, which had not been paid. It has further been pleaded that unauthorised construction had also been raised by the respondent, who was also using the premises for commercial use also though, it was let out only for residential purposes. The respondent could not be served in the ordinary process and so was served by proclamation in "veer Arjun". As the respondent failed to appear in spite of the substituted service, ex parte proceedings were ordered on 18/10/88. In support of her case, the petitioner appeared in the witness box. Shri Gurdeep Kumar, learned Additional Rent Controller came to the conclusion that notice of demand was received back unserved and thus, came to the conclusion that demand of arrears of rent was not made. He also came to the conclusion that there has not been any unauthorised construction nor there was any violation of the user by the respondent and so, the eviction petition was dismissed. Being not satisfied with this judgment, Smt. Bimla Wati filed an appeal, which came up before Shri O. P. Dwivedi, learned Rent Control Tribunal. In pursuance of a notice, issued by the Tribunal, counsel for Munna Lal appeared. Learned counsel for Bimla Wati pressed the appeal only in respect of ground of non-payment of arrears of rent and electricity charges and did not contest the findings of the Additional Rent Controller on other two grounds. In pursuance of a notice, issued by the Tribunal, counsel for Munna Lal appeared. Learned counsel for Bimla Wati pressed the appeal only in respect of ground of non-payment of arrears of rent and electricity charges and did not contest the findings of the Additional Rent Controller on other two grounds. The learned Rent Control Tribunal came to the conclusion that there was a valid demand notice severed upon the tenant, who had refused to accept service of the notice and Thus, vide judgment dated 26/10/1990, passed an order under Section 15 (1) of the Act, directing the tenant to deposit the entire arrears of rent w. e. f. 03/01/1985 @ Rs. 350. 00- per month plus electricity charges @ Rs. 50. 00- per month within one month. The Additional Rent Controller was directed to pass appropriate orders in the matter after the expiry of the aforesaid period of one month. The matter came up before Shri Gurdeep Kumar, ARC, Delhi, who passed an order, dated 05/12/1990, holding that the respondent/tenant had not complied with the order under Section 15 (1) of the Act and so was not entitled to benefit of Section 14 (2) of the Act. Accordingly, a decree of eviction under Section 14 (l) (a) of the Act was passed in favour of Smt. Bimla Wati and against Munna Lal, tenant. Civil Miscellaneous (Main) No. 28 of 1991 was filed by Munna Lal in the High Court on 03/01/1991, thereby challenging the order dated 26/10/1990 of Shri O. P. Dwivedi, giving directions to him under Section 15 (1) of the Act to deposit the arrears of rent and the electricity charges w. e. f. 03/011985. In response to the show cause notice, reply was filed by Smt. Bimla Devi. in which, it had also been pleaded that the petition was not maintainable since the order of eviction of Munna Lal had already been passed by Additional Rent Controller on 05/12/1990, before the petition was moved in the High Court. Vide order dated 29/04/1991, the aforesaid Civil Misc. (Main) 28/91 was dismissed since the eviction order had already been passed on the basis of non-payment rent and that whatever were the rights of the petitioner, they could be questioned against the main order. Vide order dated 29/04/1991, the aforesaid Civil Misc. (Main) 28/91 was dismissed since the eviction order had already been passed on the basis of non-payment rent and that whatever were the rights of the petitioner, they could be questioned against the main order. R. C. A. 307/91 was accordingly filed by Munna Lal against Smt. Bimla Devi before the Rent Control Tribunal on 30/04/1991, thereby challenging the order dated 05/12/1990 of the ARC, passing an order of eviction against him. This appeal came up for hearing before Shri K. S. Gupta, Rent Control Tribunal, Delhi who, vide judgment dated 13/05/1992, dismissed the same. ( 3 ) THE present petition came up before this Court on 22/06/1992 when it was dismissed, holding that on the same subject-matter, the petitioner had earlier filed a revision petition in this court, which was dismissed on 26/10/1990 and finding no ground to interfer, the petition was dismissed. The matter was taken to the Supreme Court by Munna Lal in a Special Leave Petition, which was allowed in 08/01/1993 and without expressing any opinion on merits, it was ordered to be decided according to law on its merits after affording opportunity of hearing to both the parties. ( 4 ) I have heard Shri R. P. Gupta, learned counsel for the petitioner and Shri Maheshwar Dayal, learned counsel for the respondent and have also gone through the record. ( 5 ) LEARNED counsel for the petitioner has submitted that in the Civil Misc. (Main) 28/91, this court had, while dismissing the petition, observed that whatever were the rights of the petitioner could be questioned against the main order and that in view of this order of the High Court, it was open to the petitioner to agitate all the objections in respect of the order dated 26/10/1990 of Shri O. P. Dwivedi. He has further submitted that the learned Additional Rent Controller was required to pass an order, thereby striking off the defence of the respondent and only then was to proceed on the application for eviction, as required under Section 15 (7) of the Act. He has further submitted that the petitioner, in fact, was not in arrears of rent and the payment had already been made. He has further submitted that the petitioner, in fact, was not in arrears of rent and the payment had already been made. He has further submitted that all these pleas were to be decided by the learned Rent Control Tribunal, who has, however, instead of doing so, has erroneously held that the order dated 26/10/1990 has become final. He has, thus, submitted that great injustice has been caused to the petitioner and that the case deserves to be remanded to the Rent Control Tribunal for deciding the appeal in accordance with the law. ( 6 ) LEARNED counsel for the respondent, on the other hand, has submitted that it was the plea of the petitioner/tenant himself that the payments have not been made in terms of the order dated 26/10/1990 of the Rent Control Tribunal and that an application was moved by the tenant in the court of the ARC, praying for time to give proof with regard to the deposit of the amount, but subsequently, a statement was made by the counsel in court that no such payment was deposited and the application has been withdrawn. He has thus, submitted that learned Rent Control Tribunal has correctly decided the appeal and then are no grounds for interfering in the impugned Judgment. A prayer has therefore, been made that the petition may be dismissed. ( 7 ) A bare narration of the facts has made it abundantly clear that the learned Rent Control Tribunal came to the conclusion that the order dated 26/10/1990 became final on account of (he dismissal of the petition of the tenant challenging this order in the High Court. This is factually incorrect, masmuch as while disposing of the petition of the tenant, is had clearly been held that the objection against the order could be taken up by the tenant while challenging the order of eviction. In these circumstances, it cannot be said that the order dated 26/10/1990 was confirmed by this court, which conclusion has erroneously been arrived at by the Rent Control Tribunal. A perusal of the impugned judgment shows that there is no mention with regard to the plea of petitioner as to whether the delnee of the tenant had been struck off and if not what is the effect of passing the order of eviction without the defence being struck off. A perusal of the impugned judgment shows that there is no mention with regard to the plea of petitioner as to whether the delnee of the tenant had been struck off and if not what is the effect of passing the order of eviction without the defence being struck off. The plea of the petitioner has been that in fact the tolal arrears of rent due to the landlord had already been paid. In the absence of a decision on this point by the Rent control Tribunal I am clearly of the view that it would he appropriate that the case is remanded to the learned Rent Control Tribunal for decision on all the points raised by the petitioner. ( 8 ) IN view of my aforegoing discussion, thc petition is allowed. The order dated 13/05/1992 of the Rent Control Tribunal is sct aside. The Rent Control Tribunal is directed to dispose of the appeal of the tenant in accordance with the law expeditiously and preferrably within four months. Parties to bear their own costs. ( 9 ) PARTIES are directed to appear before the learned Rent Control Tribunal on.