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2012 DIGILAW 116 (PNJ)

Kaushalaya Devi v. Sanjeev Kumar

2012-01-23

RAKESH KUMAR JAIN

body2012
JUDGMENT Mr. Rakesh Kumar Jain, J.: - This order shall dispose of two revision petitions filed by the landlady bearing CR-472-2012 (O&M) titled as ‘Kaushalaya Devi Vs. Sanjeev Kumar’ and CR-486-2012 (O&M) titled as ‘Kaushalaya Devi Vs. Ashok Kumar’ in which similar orders dated 10.09.2011 have been challenged by which the applications filed by the landlady for permission to withdraw the eviction petitions and file the same afresh on the same cause of action, have been dismissed. 2. In brief, the landlady has filed Eviction Petition No.30 dated 30.09.2008 in respect of ejectment of tenant Sanjeev Kumar from the shop situated in property No.8059/5, Main Road, Gurbax Colony, Patiala on the ground of personal necessity and the second Eviction Petition No.29 dated 30.09.2008 is filed against tenant Ashok Kumar in respect of the another shop situated at the same place, as mentioned above, on the same ground. In para no.6 of the eviction petitions, it has been averred by the landlady that the demised premises is required by her for her grandson, namely, Dr. Rahul Kumar Singla, who is running Aryan Hospital in the property No.8095/5 who is in need of place for parking for smooth movement of vehicles to be created after demolishing the said shops. 3. In reply, preliminary objection no.5 has been taken by the tenants that the landlady has not attached any site plan of property No.8059/5. 4. During the evidence of the landlady, she filed an application for seeking permission to allow Building Expert to inspect the building and prepare the site plan of the adjoining property but the said application was rejected by the learned Rent Controller on 30.11.2009 on the ground that examination of the Building Expert is not required to substantiate personal necessity. While the landlady was leading evidence to examine the Building Expert and the Photographer, the tenants raised the objection which was turned down by the learned Rent Controller vide order dated 09.12.010 against which the tenants filed two revision petitions bearing CR-40-2011 titled as ‘Ashok Kumar Vs. Kaushalya Devi’ and CR-63-2011 titled as ‘Sanjeev Kumar Vs. While the landlady was leading evidence to examine the Building Expert and the Photographer, the tenants raised the objection which was turned down by the learned Rent Controller vide order dated 09.12.010 against which the tenants filed two revision petitions bearing CR-40-2011 titled as ‘Ashok Kumar Vs. Kaushalya Devi’ and CR-63-2011 titled as ‘Sanjeev Kumar Vs. Kaushalya Devi’ in this Court which were disposed of vide order dated 04.02.2011 in which it was observed that the landlady could not have examined the Building Expert as the permission was already declined by the learned Rent Controller vide order dated 03.11.2009 which was not challenged by her but insofar as the Photographer is concerned, there was no order against him by the Rent Controller, therefore, there was no hurdle before the landlady to examine the said witness. 5. The landlady filed an application on 04.04.2011 for permission to withdraw the eviction petition and file it afresh on the same cause of action on the ground that there was a formal defect in the petition as the site plan of the property in dispute was not attached. The said application has been dismissed by the impugned order dated 10.09.2011 on the ground that no such permission can be granted as the provisions of Order 23 Rule 1(3) of the Code of Civil Procedure, 1908 [for short “CPC”] are not applicable to the proceedings under the East Punjab Urban Rent Restriction Act, 1949 [for short “the Act”]. Aggrieved against the said order dated 10.09.2011, the present revision petitions have been filed in which not only the facts are similar but the impugned orders are also similar. 6. Learned counsel for the petitioner(s) has submitted that the learned Rent Controller has committed a patent error of law in declining the application as it would not cause any prejudice to the tenants as the case is at the stage of evidence of the landlady. However, he could not cite any precedent in support of his case that the provisions of Order 23 Rule 1(3) CPC are applicable to the proceedings under the Act. 7. The question involved in these revision petitions is thus as to “whether the provisions of Order 23 Rule 1(3) of CPC are applicable to the proceedings under the Act? At this stage, it would be appropriate to refer to Order 23 Rule 1(3) of the CPC which reads as under: “1. 7. The question involved in these revision petitions is thus as to “whether the provisions of Order 23 Rule 1(3) of CPC are applicable to the proceedings under the Act? At this stage, it would be appropriate to refer to Order 23 Rule 1(3) of the CPC which reads as under: “1. Withdrawal of suit or abandonment of part of claim.- (1) xxx xxx xxx (2) xxx xxx xxx (3) Where the Court is satisfied,-- (a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim. (4) xxx xxx xxx (5) xxx xxx xxx” 8. In the case of Goverdhan Dass v. Sodhi Dyal Singh etc., 1969 R.C.R. (Rent) 1938, it was held by this Court that the Rent Control Act is a complete Code and the Rent Controller and the Appellate Authority cannot go outside its provisions to arm themselves with the powers which a Court normally has under the Code of Civil Procedure. The provisions of the Code of Civil Procedure are only applicable to rent control proceedings to a very limited extent. Suffice it to say that the provisions of Order 23 Rule 1(3) CPC have not been made applicable to the Act. 9. In the case of Surinder Kaur v. Ujaggar Singh, 1980(2) R.C.R. (Rent) 543, it was again held that the Rent Controller has no power to allow a party to withdraw the petition and grant permission to file afresh on same cause of action. 10. In the case of Ram Dass v. Smt. Sukhdev Kaur, 1981 PLR 440 (DB), in order to resolve a conflict between two views; one expressed in the cases of Messrs Lachman Dass Sain Dittal Mal v. Shri Hanuwant Dass Sud, 1968 PLR 174 (Delhi), Goverdhan Dass v. Sodhi Dayal Singh and another, 1969 R.C.J.. 1013, Shri Des Raj v. Faquir Chand, 1979(2) R.L.R. 404 and Mrs. 1013, Shri Des Raj v. Faquir Chand, 1979(2) R.L.R. 404 and Mrs. Harmohinder Kaur alias Mohinder Kaur v. Hari Singh, 1979(2) R.L.R. 455 in which it was held that the provisions of Order 23 Rule 1(3) CPC are not applicable to the proceedings under the Rent Act and the another expressed in the cases of Madan Lal v. Inder Kumar, 1978 P.L.R. 388 and Shakuntla Devi v. Ramesh Kumar, 1980 (1) R.L.R. 327 in which it was held that the provisions of Order 23 Rule 1(3) CPC are applicable, the Division Bench of this Court had concluded that the provisions of Order 23 Rule 1(3) of the Act are not applicable to the proceedings under the Act. 11. In view of the aforesaid discussion, the question posed in this case is not res integra as it has been authoritatively held that the provisions of Order 23 Rule 1(3) CPC are not applicable to the proceedings under the Act. 12. In view thereof, both the revision petitions are hereby dismissed. 13. A photocopy of this order be placed on the file of another connected case. --------------