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1999 DIGILAW 1155 (DEL)

VINAY SHANKER SINGH v. MANJU SAROOP

1999-12-22

VIJENDER JAIN, VUENDER JAIN

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Vijender Jain, J. ( 1 ) AGGRIEVED by the order passed by the Additional Rent Controller as well as by the Rent Control Tribunal, the appellant has filed the present appeal. ( 2 ) THE Eviction Petition filed by the Appellant was dismissed on the ground that the Special Power of Attorney which was filed before the Additional Rent Controller, did not give power to institute petition on behalf of said Ram Rati Devi as power was limited only to proceed with the proceeding pending before the Additional Rent Controller. ( 3 ) WHEN the appeal of the appellant came before the First Appellate Court i. e. the Rent Control Tribunal, an application was filed under Order 41, Rule 27 of CPC staling, inter alia, that on account of improper legal advice tendered by the previous Counsel and on account of communication gap with him, the registered Power of Attorney executed by Ram Rati Devi could not be proved although the said document was a registered document. It was prayed that the Appellate Court may allow to file the same and same may be proved before the Appellate Court. Argument of the appellant did not find favour before the Rent Control Tribunal, Tribunal dismissed the application under Order 41, Rule 27 of Civil Procedure Code upholding the order of the Additional Rent Controller. Though there is no dispute with the proposition of law that before the Additional Rent Controller it was not pleaded by the appellant that the Power of Attorney which he wanted to produce before the Rent Control Tribunal was not within his power to produce. It is also not disputed that aid of Order 41, Rule 27 of Civil Procedure Code cannot be taken to fill up gap and lacunae in the pleading, as has been contended by learned Counsel for the respondent. ( 4 ) THE Second Appeal was filed in this Court on 3rd January, 1989. Alongwith the said appeal, one CM No. 87/89 was also filed. No reply has been filed to that application by the respondent. Today, a request has been made by learned Counsel for the respondent that some more time be granted to him to file the reply. It is too late in the day to file the reply. Alongwith the said appeal, one CM No. 87/89 was also filed. No reply has been filed to that application by the respondent. Today, a request has been made by learned Counsel for the respondent that some more time be granted to him to file the reply. It is too late in the day to file the reply. ( 5 ) BY virtue of said application, the prayer of producing the General Power of Attorney which was registered in the office of Sub-Registrar on 7th March, 1981 was wrought on the ground that same being a public document, it should be allowed and taken into consideration as a subsequent event in the present proceedings. Even if agree with the submissions of learned Counsel for the respondent that as the Rent control Tribunal has not taken into consideration, the same for the reasons explained in the order, I have to advert to the fact that present appellant Vinay Shanker Singh is none other than the son of Ram Rati Devi, the original landlady. ( 6 ) RAM Rati Devi has executed a Will on 30th April, 1986 bequeathing the property in favour of Vinay Shanker Singh, the present appellant. Probate proceedings were filed to get the Will probated in favour of the present appellant. In the Court today, I have been handed over a copy of the order of the grant of Probate of appellant under Section 290 of the Indian Succession Act, 1925 granted by the District Judge, Delhi in favour of the appellant. I take that copy of the grant of Probate into consideration while deciding the controversy between the parties. Mr. Jain, learned Counsel for the respondent says that the Probate cannot be taken into consideration. ( 7 ) EVICTION Petition was filed for the first time against the respondent on account of non-payment of rent on 4th August, 1980. However, that petition was allowed to be withdrawn on 19th April, 1995. The present eviction petition was filed again on ground of non-payment of rent under Section 14 (1) (a) of the Delhi Rent Control Act on 6th May, 1985. The Additional Rent Controller dismissed the petition of the landlord on 10th November, 1987. Rent Control Tribunal dismissed the appeal of the appellant on 16th November, 1988. This matter is pending in this Court since 1989. The Additional Rent Controller dismissed the petition of the landlord on 10th November, 1987. Rent Control Tribunal dismissed the appeal of the appellant on 16th November, 1988. This matter is pending in this Court since 1989. ( 8 ) THE eviction petition which was filed in the year 1985 on the ground of nonpayment of rent was dismissed on account of General Power of Attorney was not probated before the Additional Rent Controller. Question is should I allow the landlord to go back before the Additional Rent Controller after fifteen years. That would not be in the interest of justice. ( 9 ) THE appellant being the only legal representative of the deceased Ram Rati Devi, a Will has been duly executed in his favour. Probate of the same has been obtained. I do not want the litigation to continue for another decade. I take the Probate and Will into consideration. ( 10 ) 1 set aside the impugned order and pass an order of eviction under Section 14 (l) (a) of the Delhi Rent Control Act. However, as it is a first default in payment of rent, let all the arrears of rent be paid within a period of one month. A draft for an amount of Rs. 2,310. 00 being No. 783369 dated 21. 12. 1999 drawn on Canara Bank, Wazir Pur, New Delhi has been handed over by Counsel for the respondent to Counsel for the appellant. It is contended by learned Counsel for the respondent that the said draft includes arrears of rent @ Rs. 70. 00 per month till December, 1999. ( 11 ) IT has been agreed by the respondent that from the Month of January, 2000 rent shall be paid @ Rs. 500. 00 per month. The Appeal stands disposed of in the above terms.