ABDUL SAMAD Vs. PANCHI THRU L R S

JUDGEMENT

(1.) By this petition, the petitioner has assailed an order dated 27th May, 2008 passed on an application under Order IX Rule 13 CPC made by legal heirs of the respondent for setting aside an order of eviction dated 10th November, 2005 on the ground that it was an ex-parte order.

(2.) Briefly the facts relevant for the purpose of deciding this petition are that the petitioner has filed an eviction petition against respondent under Section 14 (1) (a) of Delhi Rent Control Act (hereinafter referred to as "the Act"). This petition was contested by Smt. Punchi and an eviction order was passed on 17th May, 2005. However since it was a case of first default, benefit under Section 14 (2) was granted and respondent was given one month time to clear arrears of rent. The respondent, Ms. Panchi had stopped appearing in the court and compliance of order under Section 15 (1) even was not done. The petitioner thereafter made an application that the order of eviction be passed since the respondent had not complied with order giving benefit under Section 14 (2) of the Act and had also not complied with order under Section 15 (1) of the Act. On this application, a report was called from Nazir by learned Additional Rent Controller about deposit of rent and the Nazir reported that no rent was deposited. The learned Additional Rent Controller observed that the application was made under Section 15 (7) of the Act but the contents of the application suggest that the application was made with a prayer that eviction order be passed because the respondent had not complied with the order of the court under Section 15 (1) of the Act and had not deposited rent and was not entitled to benefit under Section 14 (2) of the Act. After receiving confirmation from Nazir about non deposit of rent, trial court passed an eviction order on 10th November, 2005.

(3.) Legal heirs of respondent made an application before learned Additional Rent Controller on 18th September, 2006 alleging therein that Smt. Panchi had died on 2nd November, 2005, that is, about eight days before passing of order and the eviction order passed by learned Additional Rent Controller was passed against a dead person and was a nullity. Other allegations made in the application were that Smt. Panchi was old and sick and unable to move from bed and the counsel engaged by her joined hands with the petitioner in procuring eviction order and counsel for Smt. Panchi did not inform her about the proceedings. It was submitted that even if an application under Order 15 (7) of the Act was made by the petitioner, learned Additional Rent Controller could not have passed an order of eviction because learned Additional Rent Controller was to consider whether the ground of eviction under Section 14 (1) (a) of the Act was made out or not and was required to give a finding about maintainability of the petition since in the written statement an objection about maintainability of the petition was also raised. The legal heirs of the respondent pleaded that they were ready to deposit the arrears of rent as passed under Section 15 (1) of the Act and the same were being deposited with the application. It was also submitted that learned Additional Rent Controller had no jurisdiction to pass an order under Section 15 (1) of the Act and then to pass an order under Section 14 (1) (a) of the Act and should recall the order passed ex-parte against a dead person.