ALI AHMED Vs. ROSHAN DAS

JUDGEMENT

(1.) A preliminary objection has been raised to the maintainability of the regular second appeal which was decided by Khanna J. on March, 22, 1971 and it is, therefore, urged that this letters patent apppeal is also not competent.

(2.) The respondent landlord filed a suit for ejectment of the appellant under section 13 of the Delhi and Ajmer Rent Control Act, 1952, hereinafter referred to as "the said Act" on grounds of non-payment of rent ; mis-user of the premises and damage to the property. This suit was filed in the civil Court having jurisdiction. The suit was compromised on May 9, 1958 and a decree for ejectment was passed in favour of the respondent and against the appellant. The condition of the decree was that if the appellant paid Rs. 300.00 in full and final settlement up to July 1, 1958, the decree for ejectment shall be deemed to have been satisfied. The appellant did not make payment in accordance with the compromise or the decree. The respondent took out execution of the decree for ejectment and an application under section 47 of the Code of Civil Procedure was filed by the appellant in the executing Court on the ground that the decree for eviction was passed solely on the basis of and in terms of the compromise without the trial Court having recorded its satisfaction as to the existence of any of the three grounds of ejectment and was, therefore, in contravention of the mandatory requirements of section 13 of the said Act. The objections of the appellant were dismissed by the executing Court as also by the first appellate Court which was the Court of the Senior Subordinate Judge with enhanced appellate powers. Against the Judgement of the first appellate Court, the appellant filed regular second appeal No. 17 of 1970 which was dismissed, as stated earlier, by Khanna J. by his order dated March 22, 1971 and, after obtaining a certificate from the learned Single Judge, this letters patent has been filed.

(3.) Even though the objection to the maintainability of the second appeal was not raised before the learned Single Judge, we have entertained the objection because it goes to the root of the matter.