BRIJ KISHORE 2 ROOP NARAIN IN C A NO 121 OF 1963 Vs. VISHWA MITTER KAPUR IN C A NO 879 OF 1962 2 BRIJ KISHOREIN C A NO 121 OF 1963

JUDGEMENT

(1.) These two appeals by special leave from two judgments of the Punjab High Court raise a common question with respect to the application of the first proviso to S. 57(2) of the Delhi Rent Control Act, No. 59 of 1958 (hereinafter referred to as the present Act). They arise from decisions of two learned single Judges in revision applications under the Delhi and Ajmer Rent Control Act, No. 38 of 1952 (hereinafter referred to as the 1952-Act). In one of them (C. A. 879) the learned Judge has held that in view of the first proviso to S. 57(2), a decree for ejectment against the tenant could not be passed. In the other appeal (No.121), the other learned Judge has held that the tenant is liable to ejectment in spite of the first proviso to S. 57(2) of the present Act. It will thus be seen that the two decisions are contradictory and raise the question as to when the first proviso to S. 57(2) precisely applies to facts similar to the facts in the present two appeals which are more or less the same.

(2.) Before we consider the question thus raised before us, we may briefly indicate the facts in the two appeals. In appeal No. 879/1962, the landlord sued for ejectment on the ground that the tenant had erected certain structures in the shape of closing an open verandah and erecting a partition therein. On account of this, notices were sent to the landlord as well as to the tenant by the authorities concerned to remove the unauthorised structures. As, however the tenant did not do so, suit for ejectment was filed by the landlord under cl.(k) to the proviso to S.13(1) of the 1952-Act, which ran as follows:-

(3.) In C. A. 121 of 1963, also the facts were similar and the suit was filed on the basis of cl. (k) of proviso to S. 13(1) of the 1952-Act. In this case also the tenant had closed the verandah without the permission of the authorities concerned and notice was given to the landlord on that count by the authorities and the landlord in his turn asked the tenant to remove the unauthorised structure. When the tenant did not do so, the landlord filed the suit. It appears that during the trial of the suit, the tenant made certain changes in the structure and removed the glazing and instead he closed the verandah with wire-gauze net. It was stated by a witness from the office of the Land Development Officer that the fixing of wire-gauze net was not against the clause as to unauthorised construction which was the same in the case of this lease as in the case of the lease in the other appeal. It may be added that no further action has been taken by the Land Development Officer after removal of the glazing and after fixing of the wire-gauze net.