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2003 DIGILAW 688 (PNJ)

Sandeep Nirola v. Nirmala Rani

2003-05-13

HEMANT GUPTA

body2003
Judgment Hemant Gupta, J. 1. The present revision petition is directed against the order dated 22.1.2002 passed by the Appellate Authority, Patiala holding that the appeal against the dismissal of the ejectment petition is not maintainable before the Appellate Authority. 2. The petitioner herein filed an ejectment petition against the respondents alleging therein that petitioner No. 1 purchased the property in dispute on 11.3.1988. It has been held that respondent Nos. 1 and 2 are tenants and they have parted with the possession of premises in favour of respondent Nos. 3 to 6 without the written consent of the landlord. 3. In reply, the respondents have taken a stand that respondent Nos. 3 to 6 entered into partnership with respondent Nos. 1 and 2 under the name and style of M/s Aggarwal Sanitation. Sh. Ranbir Chand Nirola died on 24.8.1997 leaving behind Sandeep Nirola, Sunil Nirola, Suman Bassi and Sangeeta Arora as legal heirs. Only Sandeep Arora as legal heir of deceased Ranbir Chand Nirola. However, respondent No. 3 purchased 1/4th share of property from Sunil Nirola who is one of the legal heirs vide sale deed dated 17.5.1999 and as such he become co-owner with other legal heirs of deceased landlord. Under these circumstances, he prayed in an application that the ejectment petition is liable to be dismissed and no effective order of ejectment can be passed against the respondents. 4. The petitioner contested the said application. It was stated that respondent Nos. 3 to 6 are in exclusive possession of the demised premises. The alleged partnership is only a paper transaction. It is alleged that Sandeep Nirola is the sole legal heir after the death of his father-Ranbir Chand Nirola on the basis of holograph Will. Learned Rent Controller found that after the purchase of the property by respondent No. 3, ejectment petition is not maintainable and dismissed the same. 5. Aggrieved against the said order, the petitioner filed an appeal before the Appellate Authority. However, the objection was taken that the order passed by the Rent Controller on 15.2.2001 is not appealable under Section 15 of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as the `Rent Act) inasmuch as the orders passed under Sections 4, 10, 12 and 13 alone are appealable. However, the objection was taken that the order passed by the Rent Controller on 15.2.2001 is not appealable under Section 15 of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as the `Rent Act) inasmuch as the orders passed under Sections 4, 10, 12 and 13 alone are appealable. The learned Appellate Authority dismissed the appeal holding that the order passed is not under Section 13 of the Rent Act and, thus, appeal is not maintainable. 6. I have heard the counsel for the parties and gone through the record of the case carefully. The order passed by the Appellate Authority is a perverse order. The learned Rent Controller vide order dated 15.2.2001 allowed the application of respondent No. 3 for dismissal of the ejectment petition and dismissed the ejectment petition. The operative part of the order reads as under :- "Keeping in view my above said discussion application filed by respondent No. 3 is allowed and ejectment petition is ordered to be dismissed." 7. By virtue of the said order, ejectment petition under Section 13 of the Rent Act was dismissed. Thus, to hold that the appeal against such order is not maintainable as it is not an appeal under Section 13 of the Rent Act is total misconstruction of the statutory provisions. It has been held by the Full Bench in M/s Daya Chand Hardayal v. Bir Chand, 1983(2) RCR(Rent) 38 (P&H) : AIR 1983 PB & HR 350, that the appeal is maintainable before the Appellate Authority if the order is passed under Sections 12 and 13 of the Rent Act. Learned Rent Controller has dismissed the petition under Section 13 of the Rent Act. Dismissal of ejectment petition can be on one or other ground. The question whether dismissal of the ejectment petition on such ground is required to be examined by the Appellate Authority in accordance with law. The appellate authority can examine the ground that the petitioner can not seek the ejectment on account of purchase of property by one of the alleged sub-tenants but to hold that the appeal itself was not maintainable is beyond any comprehension. 8. Consequently, the impugned order passed by the Appellate Authority is set aside. The Appellate Authority is directed to decide the appeal on merits, in accordance with law. 9. 8. Consequently, the impugned order passed by the Appellate Authority is set aside. The Appellate Authority is directed to decide the appeal on merits, in accordance with law. 9. The parties are directed to appear before the learned District Judge on 28.7.03, for further proceeding in accordance with law.