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2000 DIGILAW 916 (DEL)

MOHAMMAD IDRIS v. NATHI (DECEASED) THROUGH LRS.

2000-10-24

MADAN B.LOKUR

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Madan B. Lokur ( 1 ) THE petitioners are aggrieved by an order dated 6/11/1984 passed by the learned Additional Rent Controller dismissing the eviction petition filed by the petitioners. ( 2 ) THE learned Additional Rent Controller held that the suit premises were let out for residential purposes to one Qamaruddin, husband of respondent No. 1 (since deceased) and the father of respondent No. 2 (also since deceased ). The suit premises were required bonafide by the petitioners for their residence. ( 3 ) HOWEVER, the petitioners were non-suited on two grounds, namely, that sadruddin, one of the sons of Qamaruddin was a necessary party to the eviction petition and he was not impleaded as a respondent. Therefore, the eviction petition was liable to be dismissed on the ground of non-joinder of a necessary party. ( 4 ) IT was also held that the two deceased respondents were not the tenants of the petitioners because an order of eviction had earlier been passed against qamaruddin and as per the provisions of the Delhi Rent Control Act, 1958, a tenant against whom an order of eviction has been passed ceases to be a tenant of the suit premises and, therefore, an eviction petition cannot be filed against him. ( 5 ) ARGUMENTS in this case were heard on 10th and 17/10/2000 when judgement was reserved. ( 6 ) INSOFAR as the first finding of the learned Additional Rent Controller is concerned, it was the submission of learned Counsel for the petitioners that sadruddin was not residing in the suit premises at the time of the death of qamaruddin and, therefore, he was not a necessary party to the eviction petition. To my mind, the fact that Sadruddin was not residing with Qamaruddin is really of no consequence. Sadruddin was the son of Qamaruddin and he inherited the tenancy rights of Qamaruddin on the death of his father. As such, it was necessary to make him a party to the eviction proceedings. It would have been another thing if Sadruddin had stated that he had no interest in the suit premises, but he was never given the opportunity to say whether he claimed any tenancy rights or not. I am, therefore, in agreement with the learned Additional Rent Controller that Sadruddin was a necessary party to the eviction petition and his non-joinder makes the eviction petition liable to be dismissed. I am, therefore, in agreement with the learned Additional Rent Controller that Sadruddin was a necessary party to the eviction petition and his non-joinder makes the eviction petition liable to be dismissed. ( 7 ) SO far as the second ground given by the learned Additional Rent Controller is concerned, I am of the view that there is a conflicting finding given by the learned additional Rent Controller. It had earlier been found by the learned Additional rent Controller in the impugned order that notwithstanding the earlier eviction decree against Qamaruddin, he continued to reside in the suit premises because the eviction decree was not executable since no permission had been taken from the competent Authority under the Slum Areas (Improvement and Clearance) Act, 1956. It was held that there was "ample evidence" on record that Qamaruddin was a tenant in the suit premises and after his death the deceased respondents were the tenants. ( 8 ) IN fact, a specific argument was taken by the respondents that they are the owners of the suit premises by adverse possession. This argument was negatived by the learned Additional Rent Controller and he returned a finding that the deceased respondents were tenants in the suit premises. This being the position, the learned Additional Rent Controller could not have come to an opposite conclusion in a subsequent portion of the impugned order to the effect that the deceased respondents were not tenants because a decree of ejectment has been passed against qamaruddin. The learned Additional Rent Controller having come to the conclu- sion on the basis of the evidence on record that the deceased respondents were tenants in the suit premises, he should not have come to an opposite conclusion. subsequently. ( 9 ) EVEN otherwise, if it is assumed that the deceased respondents were not tenants in the suit premises, then Sadruddih would not have been a necessary party to the eviction petition because he was not living in the suit premises and the tenancy of his father had been terminated by the decree of ejectment passed earlier. Therefore, the impugned order suffers from an inherent contradiction with regard to the second ground for non-suiting the petitioners. ( 10 ) UNDER the circumstances, I uphold the finding of the learned Additional rent Controller that Sadruddin was a necessary party to the suit proceedings. Therefore, the impugned order suffers from an inherent contradiction with regard to the second ground for non-suiting the petitioners. ( 10 ) UNDER the circumstances, I uphold the finding of the learned Additional rent Controller that Sadruddin was a necessary party to the suit proceedings. But, i set aside his finding that the deceased respondents were not tenants in the suit premises. Unfortunately, since Sadruddin was not made a party to the eviction petition, despite his being a necessary and proper party, there is no option but to uphold the order of the learned Additional Rent Controller and dismiss the eviction petition as well as the revision petition on this limited ground. It is ordered accordingly. The Trial Court record be sent back immediately. Revision Petition dismissed.