RAJESHWAR DAYAL Vs. NANAK CHAND

JUDGEMENT

(1.) This second appeal under Section 39 of the Delhi Rent Control Act, 1958 (hereinafter referred to as 'the Act') by the landlord has arisen in the following circumstances.

(2.) Plot No. 4/3 situated at Western Extension Area, Karol Bagh, New Delhi was taken on lease by one Smt. Singhari Devi from the Delhi Improvement Trust in terms of lease deed dated 12/5/1942. It was gifted by her to her daughter Smt. Gaindo Bai by means of a gift deed dated 7/7/1945. Smt. Gaindo Bai thereafter sold the leasehold rights to Ganga Dayal father of the appellant by means of a sale deed dated 9/10/1953. Shri Ganga Dayal Saxena raised structure over the said plot of land. He let out one garrage of the said property to Nanak Chand, respondent No. I with effect from 1/7/1954 on a monthly rent of Rs. 50.00 in terms of the rent note dated 7/7/1954 (Ex. AW3/1). The respondent No. 1 started using the said garrage for the purpose of running a provision store. According to the lease deed the property was to be used for residential purpose only. As the user was contrary to the terms of the lease deed, the Delhievelopment Authority, successor of the Delhi Improvement Trust, served varioue notices upon the landlord Ganga Dayal requiring him to stop the misuser. The landlord therefore, on 9/9/1962 sent a notice to the tenant under Section 14(l)(k) of the Act requiring him to stop the misuser. Finding no response, he filed an application for his eviction under Section 14(l)(k) of the Act. The Additional Controller by order dated 9/12/1963 dismissed the eviction application observing that the landlord himself had let out the premises for being used as a shop. The appeal filed by the landlord was dismissed by the Tribunal on 10/6/1964. It appears that the Delhi Development Authority, respondent No. 2, has been issuing notices to the landlord Ganga Dayal from time to time. Some of these notices are Ex. AWI/6 dated 13.5.65, Ex.AW1/7 dated 2.12.67, Ex AWI/8 dated 5.3.68 requiring the landlord to stop the user of the plot in question contrary to terms of the lease. The landlord, therefore, on 25/7/1968 served a fresh notice upon the tenant under Section 14(l)(k) of the Act requiring him to stop the misuser and to vacate the premises. The respondent No. 1 sent a reply dated 17/9/1968 (Ex. AW2/13) refusing to comply with the notice. Misuser was not stopped. The landlor Ganga, Dayal therefore, on 11/3/1969 filed an application for eviction on various grounds including the ground mentioned in Section 14(l)(k) of the Act. During the pendency of the eviction proceedings Ganga Dayal Saxena died and the present appellant Rajeshwar Dayal Saxena on the basis of a Will in his favour was substituted. On 31/3/1969 the Additional Controller dismissed the eviction petition on the ground that the same was barred by principles of res judicata. The appeal filed by the landlord before the Rent Control Tribunal was also dismissed on 7.12.981. Hence this second appeal.

(3.) The learned counsel for the appellant submits that the previous decision of the Controller dated 9/12/1963 was erroneous in law, that the Supreme Court in Faqir Chand v. Ram Rattan AIR 1973 S.C. 921 has held that a landlord who himself let out the premises in violation of the terms of the lease deed entered into with the President of India was not stopped from claiming eviction of his tenant under Section 14(l)(k) of the Act, that there was a change in law by the judicial pronouncement of Supreme Court, that the present application for eviction was based on a cause of action different from the cause of action in the earlier case, that there is no estoppel against the appellant although he himself had let out the premises for use as a shop as held in the earlier proceedings, that his right to claim eviction under Section 14(l)(k) read with Section 14(11) of the Act was not determined by the Controller and the Tribunal in the previous case and that the user contrary to the terms of the lease deed is a recurring cause of action. The learned counsel for the respondent-tenant on the other hand submits that there is no change in law by the judicial pronouncement of Supreme Court as contained in Faqir Chand (supra) that it is only a declaration of the correct interpretation of the law contained in Section 14(l)(k) of the Act, that the cause of action in the present litigation is not different, that the appellant having leased the premises tor a purpose contrary to the terms of lease is not entitled to an order of eviction against the tenant and the eviction petition is barred by principles of res-judicata.