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2014 DIGILAW 1604 (PNJ)

Joginder Singh v. Sunil Kapoor

2014-11-21

RAKESH KUMAR JAIN

body2014
Rakesh Kumar Jain, J. 1. This petition is filed by the landlord against the order of both the Courts below, dismissing his petition filed under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as the "Act") for eviction of the tenant on the ground of personal necessity. Both the Courts below have found that the landlord has failed to plead and prove the provisions of Section 13(3)(a)(i) of the Act. 2. In the present revision petition, notice of motion was issued on 02.09.2013 and the following order was passed:-- "The petitioner-landlord has filed the instant petition for eviction of the respondent-tenant on various grounds including the ground of personal necessity. However, he has been non-suited by the Authorities below on the ground that the petitioner-landlord has failed to disclose the particulars of other properties occupied by him. Counsel for the petitioner contended before this Court that in terms of Order 23 Rule 1(3) CPC, which are also applicable to rent proceedings in view of DB judgment of this Court in Mehtab Singh v. Tilak Raj Bhatia 1988(1) R.C.R (Rent) 159 : 1988(1) PLR 269, the petitioner be allowed to withdraw the eviction petition itself with liberty to file a fresh one after making compliance of the provisions of Section 13(i)(a)(b)(c) of the East Punjab Urban Rent Restriction Act, 1949. Learned counsel has relied upon a judgment of the Hon'ble Supreme Court in the case of Onkar Nath v. Ved Vyas 1980(1) R.C.R. (Rent) 304 : AIR 1980 SC 1218 . Notice of motion for 4.10.2013. Dasti only." 3. Counsel for the petitioner has submitted that there was a technical defect in the eviction petition and has prayed that he may be allowed to withdraw the petition decided by both the Courts below, with liberty to file it afresh on the same cause of action. It is submitted that the provisions of Order 23 Rule 1(3) of the Code of Civil Procedure, 1908 (hereinafter referred to as the "CPC") are applicable to the rent proceedings as well, as decided by this Court in the case of Mehtab Singh Advocate v. Shri Tilak Raj Arora and another, 1988(1) PLR 269 and further relied upon a judgment of the Supreme Court in the case of Onkar Nath v. Ved Vyas, 1980 AIR (SC) 1218. 4. 4. On the other hand, counsel for the respondents has submitted that the eviction petition filed by the landlord was dismissed on the ground that he has failed to plead and prove the ingredients of Section 13(3)(a)(i) of the Act. It is also submitted by him that where both the authorities under the Act had decided the eviction petition against the landlord, the permission should not be granted to withdraw the eviction petition as it would destroy the finding of fact recorded by the Courts below in favour of the tenant. In support of his submission, he has relied upon a judgment of the Himachal Pradesh High Court in the case of Asha Gupta v. Balbir Singh, 2000(2) CLJ (H.P.) 323 and a judgment of the Supreme Court in the case of R. Rathinavel Chettiar and another v. V. Sivaraman and others, 1999(2) R.C.R. (Civil) 447 : (1999) 4 Supreme Court Cases 89. 5. I have heard learned counsel for the parties and perused the record with their able assistance. 6. It is not disputed that the eviction petition filed by the petitioner-landlord was dismissed by the Rent Controller on 04.03.2009 by observing that "so the petition of the petitioner seeking the ejectment from the respondents-tenants on the ground of personal necessity and nuisance is barred by principle of res judicata". However, the finding of the Rent Controller that the eviction petition was barred by the principle of res judicata was reversed by the Appellate Authority by observing that "keeping in view these facts, the findings given by the Rent Controller that the present ejectment application is barred by the principles of res judicata is not justified and findings given by the Rent Controller on this issue are accordingly reversed". It is, however, also not in dispute that when the eviction petition was instituted in the year 1999, two shops constructed in the house No. 69, Hardev Nagar, Jalandhar were also in possession of the petitioner which were not disclosed in the eviction petition. It was thus observed by the Courts below that the petitioner has intentionally concealed the ownership of similar property, i.e. shop in the other area within the Municipal Corporation, Jalandhar, and was not entitled to the relief of eviction. It was thus observed by the Courts below that the petitioner has intentionally concealed the ownership of similar property, i.e. shop in the other area within the Municipal Corporation, Jalandhar, and was not entitled to the relief of eviction. Since the petitioner could not have challenged these findings of fact recorded by both the Courts below, dis-entitling him to seek eviction of the tenants on the ground of personal necessity, the argument was raised in this revision petition at the time when the notice was issued to the tenant that he may be allowed to withdraw the eviction petition with liberty to file it afresh after making compliance of Section 13(3)(a)(i) of the Act. 7. There is no dispute that the Division Bench of this Court in Mehtab Singh Advocate's case (supra) has held that the provisions of Order 23 Rule 1(3)of the CPC are applicable to the proceedings before the Rent Controller but the principle settled is that no man be waxed twice over the same cause of action. 8. However, the judgment relied upon by counsel for the petitioner in Onkar Nath's case (supra) would not be applicable in this case as in that case, the Supreme Court had found that though the landlord had filed the eviction petition on the ground that he requires the building for his own occupation but the legislation has also insisted for compliance of two more conditions, namely, (a) that the landlord is not occupying any other residential building in the area concerned; and (b) that he has not vacated such a building without sufficient cause. It was also found that there was no averment in regard to compliance of the aforesaid two conditions much-less the evidence. It was also observed that the statute is benignly designed to protect tenants from unreasonable evictions and the Legislature has taken care to put restrictions which must be rigorously construed to fulfill the purpose of the statute and a mere affidavit at a later stage of the litigative process can hardly be of any consequence to meet the mandate of Section 13(3) of the Act. Hence, the appeal filed by the tenant was allowed but at the same time, it was observed that since the respondent-landlord is himself an advocate, therefore, as a special case, he was allowed to file proceedings for eviction de novo, making clear that the allowance of that appeal will not stand in his way. 9. To my mind, this judgment is not applicable to the facts of the present case because it was the benefit granted by the Apex Court to the respondent-landlord who was an advocate. As a matter of fact, the question involved in this case is as to "whether the application filed under Order 23 Rule 1(3) of the CPC for withdrawing the eviction petition with liberty to file it afresh on the same cause of action can be allowed when both the authorities under the Act had already decided the eviction petition against the landlord?" In this regard, I would rely upon the judgment of the Supreme Court in R. Rathinavel Chettiar and another's case (supra), wherein it has been held that the suit, at the appellate stage, cannot be allowed to be withdrawn by the Court as a matter of course when by virtue of such withdrawal vested or substantive rights of any party to the litigation will be adversely affected. Similarly, in Asha Gupta's case (supra), it was held that once both the authorities had decided the rent petition against the landlord, the permission for initiating the second inning while withdrawing the main matter would virtually destroy the finding of fact recorded by the authorities. The positive finding has been recorded by both the Courts below making a strong observation against the landlord that he intentionally concealed the fact of his ownership of two shops in the other area within the Municipal Corporation, Jalandhar which were constructed by him in the house No. 69, Hardev Nagar, Jalandhar and were also in his possession. This is not a formal defect in the eviction petition which could be allowed to be rectified, permitting the landlord to withdraw the eviction petition, who has lost before both the Courts below after a finding of fact has been recorded on the basis of evidence, to file it again on the same cause of action by making reference to the provisions of the Act as well as the fact which he had earlier concealed from the Court. In view of the aforesaid discussion, there is hardly any merit in the present revision petition and hence, the same is hereby dismissed, though without any order as to costs.