Delhi High Court
Rajinder Pershad vs Nathu Ram on 27 October, 1994
Equivalent citations: 56(1994)DLT279, 1995(32)DRJ252, 1995RLR121
JUDGMENT J.K. Mehra, J.
1. On this petition coming up for hearing on 18th October 1994, nobody appeared on behalf of the respondent. As such in the interest of justice, a notice was issued to the counsel for the respondent for today. Even today, there is no appearance on behalf of the respondent despite service of notice on his counsel. In the circumstances, I have heard the arguments of the counsel for the petitioner in the absence of the respondent.
2. I find that the premises in dispute are residential and had been let also for residential use. From the impugned order it appears that the Rent Controller was impressed by the submissions of the respondent relating to the validity or otherwise of the decree passed by Civil Court whereby the award partitioning the property including property in dispute was made a rule of the court and a decree was passed on the basis thereof. The Additional Rent Controller appears to have committed a serious error by going behind a decree passed by a Civil Court competent to try such matters unless it is set aside in accordance with law. The tenant has taken the plea of being tenant under the father of the petitioner and has also admitted that the property is ancestral which means that the petitioner is a co-owner of the property. I find that the decree in favor of petitioner was passed in April 1983 and has not yet been challenged by any one including the father. As such it is binding on the father and all persons holding under him. The Rent Controller had no jurisdiction to travel behind the decree based on arbitration award relating to partition of the property giving the property in dispute to the petitioner. Further in 1983 a partial partition of the ancestral property was permissible. I am informed that till date none of petitioner's brothers have challenged the decree.
3. Further the claim of the petitioner, who was admittedly one of the coparceners in the Hindu Undivided Family property and as a co-owner and landlord, could not ask for eviction in his right as co-owner, could not be rejected on the sole ground that the decree passed is null and void on the basis of a collusion between the parties to the arbitration. In that event, the Rent Controller should have considered the requirement of the petitioner, who as one of the co-owners was entitled to seek eviction on the ground of personal bona fide requirements of the petitioner and that of his family members dependent on him.
4. The fact that the petitioner following such decree wanted to shift to the portion falling to his share cannot be overlooked because he is required to surrender the portion presently being occupied by him to his father in whose share that portion had fallen under the decree. Even as co-owner, the petitioner would be entitled to the possession, if he has to set up his separate home for himself and his family separately from his father. That aspect has also been overlooked in the impugned judgment. A perusal of the evidence on record establishes the bona fide requirement of the petitioner for self and for members of his family dependent on him and that he has no other reasonably suitable accommodation available to him.
5. In this view of the matter, I set aside the finding of the Additional Rent Controller in respect of bona fide requirements. The findings in the impugned order regarding purpose of letting and user of premises being residential which are in favor of the petitioner and are upheld.
6. The net result is that an order for eviction of the respondent is passed. However, eviction order shall not be executed for a period of 6 months from today. This revision is disposed of in the above terms with no order as to costs.