EDWIN STEPHEN Vs. SADA NAND

JUDGEMENT

(1.) This is second appeal under Section 39 of the Delhi Rent Control Act, 1958 (hereinafter called 'the Act'). The question for decision is whether the Controller has power to revive eviction proceedings, when the eviction order passed against the minors, without appointment of a proper person be a guardian under order 32 of the Code of Civil Procedure (hereinafter called 'the Code'), has been held to be a nullity by the Controller during execution proceedings.

(2.) This question has arisen in this case and the relevant facts are : Fateh Chand Wadhwa, predcessor-in-interest of respondents 1 to 4 filed and aplication for eviction from a portion of the property No. 5156, Ward XI, Faiz Ganj, opposite Pataudi House, Darya Ganj, Delhi, against respondents 5 to 10 and appellant No. 2 Rodrick Stephen, Veena, Anil and Vijay respondents 7 to 10 in this appeal were described as minors. The eviction was claimed under various clauses of the proviso to sub-section (1) of Section 14 of the Act. Harry Stephen, appellant No. 2, filed a written statement pleading, inter alia, that his real uncle Edwin Stephen, appellant No. 1, was the head of the family and was in occupation of the premises as a tenant and was a necessary party. In view of this plea, the Controller directed that Edwin Stephen be added as a party to the eviction proceedings. His name was accordingly added and is now appellant No. 1 in this appeal. Ultimately an order of eviction was passed by the Additional Controller on 15th December, 1966. The tenants' appeal was dismissed by the Rent Control Tribunal on 1st March, 1968. It appears that Fateh Chand Wadhwa died and respondents Nos. 1 to 4 were substituted as heirs and legal representatives. An application for execution of the eviction order was filed before the Additional Controller. The judgment-debtors filed objections under Section 47 of the Code of Civil Procedure pleading that no guardian ad-litem of the minors i.e. respondents 7 to 10 was appointed in the eviction petition, that the minors were not at all represented by any legal guardian and therefore the eviction order was a nullity. The decree-holders contested the objections. The Additional Controller, however, vide his order dated 12th September, 1969 held that the minors were not duly represented and the eviction order was a nullity and that the same could not be executed. The decree-holders filed an application that the original eviction petition remains undecided as the eviction order has been held to be a nullity and that the eviction application be revived and decided after service of the notice on the opposite party and appointment of guardian-ad-litem in accordance with law. This application was opposed on the ground that the eviction order passed by the Additional Controller on 15th December 1966 merged with the order dated 1st March, 1968 passed by the Tribunal and therefore the Additional Controller has no jurisdiction in the matter and the remedy, if any, lay with the Tribunal. The Additional Controller upheld the objection and dismissed the decree-holders' application for revival vide order dated 4th May, 1970. The landlords-decree-holders filed two appeals (1) against the order dated 12th September, 1969 holding the eviction order to be a nullity and (2) against the order dated 4th May, 1970 refusing to revive the eviction proceedings. While these appeals were pending before the Rent Control Tribunal the decree-holders-landlords filed an application for revival of the eviction proceedings before the Tribunal also. It was contended that the revival should be ordered by the Tribunal and that the two orders passed by the Additional Controller dated 12th September, 1969 and 4th May, 1970 were not in accordance with law, and that the Additional Controller failed to exercise jurisdiction vested in it to revive the eviction proceedings. The Rent Control Tribunal by the impugned order dated 1st May, 1973 dismissed the landlords' appeal against the order holding the eviction order to be a nullity and accepted the appeal against the order refusing to revive eviction proceedings on the basis that when the Additional Controller could declare the eviction order a nullity he could order its revival and also taking into consideration the application for revival of eviction proceedings, filed by the landlords-decree-holders before the Tribunal. Edwin Stephen and Harry Stephen have filed this appeal against the order of revival of eviction proceedings.

(3.) The learned counsel for the appellants has raised two questions :