Delhi High Court
Ms Rukmani Devi Jaipuria Charitable ... vs Dawar And Co. And Ors. [Along With Cm(M) ... on 24 July, 2006
Equivalent citations: 131(2006)DLT370
Author: Sanjay Kishan Kaul
Bench: Sanjay Kishan Kaul
JUDGMENT Sanjay Kishan Kaul, J.
1. Respondent No. 1 is stated to be the sole proprietorship of Mr. Nanak Chand Dawar. The firm is stated to have been closed almost 10 years ago and the sole proprietor has passed away. Respondent no.2 is the wife of Mr.Nanak Chand Dawar who has also passed away. Respondent No. 3 is the son of Mr.Nanak Chand Dawar and is stated to be the only legal representative and would thus represent the estate of the deceased father and the mother including the sole proprietorship concern. The said respondent has not appeared despite service and is proceeded ex parte.
2. The application filed by the petitioner under Order 22 Rule 2 of the Code of the Civil Procedure, 1908 (herein-after referred to as the said Code) is for causing an entry to be made to record that only respondent no.3 is entitled to defend the petition. The application is accordingly allowed.
CM(M) No. 355/2003 CM(M) No. 358/2003
1. A common question of law has arisen in both the petitions wherein a common order has been passed by the trial court and the appellate tribunal.
2. The petitioner landlord originally filed eviction petitions under Section 14(1)(a) r/w Section 22 of the Delhi Rent Control Act, 1958 (hereinafter referred to as the said Act). The petitions have been pending for quite some time. The petitioner sought to amend the petition to incorporate the additional ground of subletting and seek eviction on the said ground under Section 14(1)(b) of the said Act.
3. Insofar as the additional ground being urged is concerned, a judgment of the Full Bench of this Court has been pointed out by learned Counsel for the petitioner in Abnash Kaur v. Dr. Avinash Nayyar and Ors. 1974 . The Full Bench has held that the cause of action for eviction is a combination of termination of contractual tenancy and the existence of circumstances depriving the tenant of the statutory protection given by the rent Control legislation. Thus on the cause of action arising consisting of the termination of the contractual tenancy and the ground of eviction provided in the Act existing at the time of filing the application, the landlord can file an eviction application. If a new ground for recovery of possession arises after the filing of the petition, then that can also be combined with the termination of the contractual tenancy to form a new cause of action and the landlord would be entitled to amendment of the existing eviction petition and urge the new ground to enlarge the cause of action. It was further held that he is also entitled to file a fresh petition by combining the new ground with the existing part of the cause of action but in practice the landlord would be well advised in amending the petition for eviction rather than filing a separate one as two different petitions would lead to uncertainty and multiplicity of proceedings.
4. In view of the aforesaid Full Bench Judgment, the issue about the amendment of an eviction petition and incorporating another ground which may have arisen subsequently is no more res integra. The only question which arises is that in the facts of two cases in question the properties are located in slum area and thus permission under Section 19 of the Slum Areas (Improvement and Clearance ) Act is a prerequisite. Such a clearance had been obtained by the petitioner prior to institution of the eviction petitions.
5. Both the courts below have considered the legal ramifications of the aforesaid and have come to the conclusion that though in ordinary circumstances an amendment could have been allowed but in view of the tenanted premises being located in slum area, a fresh permission would be required while urging the additional ground. In this behalf, assistance has been taken of the judgment of the learned Single Judge of this Court in Bishamber Nath and Ors. v. Urmila and Ors. . It may be noticed that the appellate tribunal has in fact said that the tribunal is not the appropriate authority to really correct the error, if any, in the order of the Additional Rent Controller and the matter falls within the domain of the exercise of jurisdiction by this Court under Article 227 of the Constitution of India.
6. A perusal of the judgment in Bishamber Nath and Ors. Case (supra) would show that reliance was placed on a judgment of the Supreme Court in Civil Appeal No. 1906/1987 titled Mohd Usman and Ors. v. Mohd. Siddique and Anr. decided on 26.08.1987. The Supreme Court was seized with the matter where a fresh eviction petition was sought to be filed and it was held that the Section 19 of the Slum Act confers protection on the tenant. The said permission was held to be a prerequisite for institution of the proceedings for eviction. Since the permission which had been obtained on the earlier occasion was on the basis of set of facts then prevailing, the permission is exhausted when earlier proceedings are initiated. Any fresh eviction proceedings, albeit after even a short interval, were held to require fresh permission.
7. Learned single judge in Bishamber Nath and Ors. Case (supra) held that the permission granted by the competent authority under the Slum Act gets exhausted when the final order is passed by the appropriate court either allowing or dismissing the eviction petition and thus fresh permission would be required.
8. The aforesaid observations are important because the present case is one where fresh eviction petition has not been filed but an additional ground is sought to be urged in the eviction petition on account of subsequent facts. If the earlier proceedings would have culminated in either the petition being allowed or disallowed and a fresh petition was sought to be filed, there can be no manner of doubt that the permission under the Slum Act would be required in view of the observations in Bishamber Nath and Ors. Case (supra) and Mohd Usman and Ors. Case (Supra). However that is not the position in the present case where only an additional ground is sought to be urged. The original petitions have not been terminated and thus, in my considered view, there is no reason for fresh permission to be once again taken from the slum authority in respect of the original cause of action.
9. The Full Bench in Abnash Kaur v. Dr. Avinash Nayyar and Ors. has clearly held that the cause of action is composite consisting of the termination of the contractual tenancy and the ground of eviction provided in the Act. Thus if the new ground for recovery of possession arises then the same can be combined with the termination of contractual tenancy to form a new cause of action.
10. I am thus of the considered view that no fresh permission is required in view of the amendment sought by the petitioner. The impugned orders are set aside and the petitions filed by the petitioner are allowed in the aforesaid terms leaving the parties to bear their own costs.
11. The Additional Rent Controller to expedite the matter since they are extremely old petitions.
12. The parties to appear before the Additional Rent Controller on the next date of hearing which is stated to be already fixed.
CM No. 718/2003 in CM(M) No. 358/2003 CM No. 711/2003 in CM(M) No. 355/2003 No further directions are called for in this application in view of disposal of the main petition.
Application stands disposed of.