KAILASH WANTI Vs. OM DUTT

JUDGEMENT

(1.) The suit property was owned by Salamat Jan. After her death it devolved upon her son Mohd. Naqi, .who is alleged to have sold this property to 0m Dutt, respondent in this appeal, 0m Dutt respondent filed an eviction petition against his tenant Des Raj on grounds covered by Section 14(i)(e) and (j) of the Delhi Rent Control Act 1958. The additional Controller passed the order of eviction on 7-3-1979. He filed an appeal before the Rent Control Tribunal, but it was dismissed on 1 1-3-1981. The second appeal was also dismissed.

(2.) Shrimati Kailash Wanti who has not been a party to the eviction proceedings has filed this appeal alongwith an application for leave to appeal. She alleged that the suit property was under the tenancy of Kesar Mal and Des Raj tenants that they were joint tenants/co-tenants, that after the death of Kesar Mal, she being the daughter, one of the heirs, was entitled to inherit tenancy rights. She further stated that she was not made a party to the eviction proceedings that order of eviction was not binding on her. She states that she was a necessary party and that she ought to have been made a party to the eviction proceedings and that therefore she should be granted leave to appeal and to contest the eviction order passed by the Tribunal. Show cause notice of the appeal and the application was given to the respondent . The respondent has filed the reply to the show cause and he states that Shrimati Kailash Wanti is not the daughter of Kesar Mal. That she is the wife of Des Raj judgment-debtor, which fact was not disclosed by her either in the appeal or in the leave application. Affidavit on behalf of Shrimati Kailash Wanti was filed by Shrimati Kanta Rani alleging to be her daughter. Shrimati Kanta Rani also did not mention her father's name. This appeal was filed on 4-4-1981 and came up for admission on 7-4-1981. The learned counsel for the respondent has brought to my notice that on 7-4-1981 Smt. Kailash Wanti filed a suit for perpetual injunction in the court of the Senior Sub Judge, narrating all facts which have been given by her in the present appeal and the application for leave to appeal and praying that an injunction be granted restraining 0m Dutt respondent from dispossessing her from the premises in question. In the civil suit also she did not disclose that she is the wife of Des Raj, judgment-debtor. It is admitted at the bar that this suit is still pending. Besides this, it has been brought to my notice by the learned counsel for the respondent that Smt. Kailash Wanti has also filed proceedings under Section 25 of the Delhi Rent Control Act, 1958 which arc also pending before the Additional Rent Controller.

(3.) The appellant alleges that Kesar Mal and Des Raj were co-lessees and joint tenants. It seems to me that these words have been used loosely by the appellant. The contention of the learned counsel for the respondent is that Kesar Mal and Des Raj were joint tenants and after the death of Kesar Mal tenancy devolved on Des Raj alone and therefore,"he submits that Kesar Mal was neither a necessary nor a proper party to the eviction proceedings On the other hand Mr. Panjwani counsel for the appellant submits that Shrimati Kailashwanti was co-tenant and not joint tenant. I do not decide whether Kesar Mal was a joint tenant or a co-tenant as it will prejudice the parties to the litigation which are pending before the Civil Courts and the Additional Rent Controller. In the application for leave to appeal it is not disclosed when the petitioner came to know about the litigation. The judgment-debtor is no body else but husband. It is disclosed by the appellant in the opening sheet that eviction proceedings were filed on 5-1-1978 but it is however, not disclosed when she came to know about the pendency of eviction case. The allegation is that as she is in possession, she should not be dispossessed without giving a reasonable opportunity. She is not a party to the proceedings and ordinarily she should not be granted leave to appeal. In exceptional circumstances, leave to appeal may be granted. In the present case, I am of the view that all allegations made by the petitioner would require evidence and the allegations cannot be decided without recording of evidence. Moreover she has started these proceedings when her husband lost. The question of facts and law arising will also require recording of the evidence. When Smt. Kailash wanti has also filed a suit for injunction based on the same facts as she has mentioned in the present appeal and application for leave to appeal, I do not consider fit and proper to grant leave to appeal to her. The rights if any of the appellant can be gone into in the suit for injunction or in the proceedings under Section 25 of the Delhi Rent Control Act, 1958 in accordance with law. The learned counsel for the petitioner has referred to 8. Govinda Manon v. K. Madhvan Nair and others AIR 1964 Kerala 235, para 871 of Halsburys Law of England Vol. 30 3rd Edition Jogeshwar Narain Deo v. Ram Chandra Dutt,., Vidya Wanti v. Taken Doss and another, 1974 RCR 47 and American Cyanamid Co. v. Ethicon Ltd., 1975 (1) All. ER 504 in support of his case. By these authorities he wanted me to hold that he has a. prima facie case and that leave to appeal be granted. In view of the disputed question of facts, I do not want to discuss the authorities as my discussion may prejudice the Civil suit and proceedings under Section 25 of Delhi Rent Control Act. Under the circumstances, I find there is no ground for grant of leave to Shrimati Kailash Wanti. The application for leave to appeal and the second appeal are dismissed.