JAI KISHAN BAL KISHAN Vs. M B KAGAL

JUDGEMENT

(1.) This is a second appeal under Section 39 of the Delhi Rent Control Act 1958 at the instance of the tenant. The question involved in this appeal is, whether the landlady Dr. (Mrs.) Kagal was entitled to bring two ejectment petitions against the tenant. It appears from the facts that she instituted the first ejectment petition on 17th February, 1968 in which she claimed ejectment from a shop and a two-roomed flat situated on the ground and first floors, respectively, of 2, Sunder Nagar, Market, New Delhi. That petition was based on non-payment of rent, personal bona fide requirement, non-occupation of the flat for a period of six months, acquisition of vacant possession of an other residential premises contrary to the conditions imposed on the appellant by the Government while giving the lease. Clearly, this petition was based on a number of different grounds. On 2rd March, IS68, the second ejectment petition was filed, which was based solely on the ground of sub-letting the iesidential flat situated on the first floor and a part of the ground floor. The alleged sub-tenant, M/s Sweet Corner, Sunder Nagar Market, Delhi, was impleaded as respondent No .2.

(2.) The two ejectment petitions were consolidated and were tried together thereafier. The land-lady completed her evidence on 20th December, 1968 and on 7th January, 1969, the tenant and M/s Sweet Corner, respondent No. 2 made an application that the maintainability of. the second ejectment application should be decided as a preliminary issue. The Additional Rent Controller entertaind this application and gave a decision holding that the second application was barred under Order 2, Rule 2 of the Code of Civil Procedure.

(3.) The reasoning of the Additional Rent Controller in support of this decision was that the alleged sub-letting had taken place in the year 1967,even before the institution of the first ejectment petition. Relyuing on Jai Narain 'v. Syed Ali Murtaza and Amir Din Shahab Din v. Shiv Dev Singh the Additional Rent Controller held that if the landlady knew of the existence of the sub-letting when she instituted the first ejectment petition she could not bring another ejectment petition on an existing ground at a subsequent date. On the facts, the Additional Rent Controller held that the landlady never slated in her evidence, that she was not aware of the existence of sub-letting when she instituted the first ease. The second ejectment petition was accordingly dismissed by the Additional Rent Controller on 14th January, 1969.