GAURA DEVI Vs. RAMESHWAR PERSKLAD AND ANR.

JUDGEMENT

(1.) This Second Appeal, by an unsuccessful sub -tenant, challenges the order of the learned Rent Control Tribunal dismissing the appellant's appeal against the order of the learned Addl. Rent Controller dismissing the objections filed by the appellant under Sec. 25 of the Delhi Rent Control Act, 1958, hereinafter called 'the Act' on the ground that the same were not maintainable. The Second Appeal has been filed in the following circumstances:

(2.) The property in dispute bearing Municipal Nos. 1179 -80, situated in Pahar Ganj. New Delhi, was owned by Gauri Prasad, who is said to have died in the year 1968. The first and the second floors of the said property bearing Nos. 1179 and 1180 respectively were let out by the landlord to one Ram Kishan Aggarwal, respondent No. 2 in the present appeal. The appellant herein claims to have been a sub -tenant under the said tenant in respect of the entire second floor of the property and there is a dispute between the parties as to the date since which the appellant has been a subtenant, as to whether it was with the consent of the landlord and as to whether the appellant became a lawful sub -tenant at any material time. On August, 1947, the landlord filed a suit for the eviction of the tenant and for recovery of rent and, according to annexure 'A' to the memorandum of appeal filed by the appellant before the learned Tribunal, the claim for rent was decreed but the suit for ejectment was dismissed. Neither the notice of termination of tenancy, if any, nor the plaint was placed on record and there is no indication from the order of the learned trial Court if the ejectment was claimed on the ground of sub -letting or if the tenancy had been terminated prior to the institution of the suit and if the appellant herein was the sub -tenant, the sub -letting in whose favor may have formed subject -matter of a ground of ejectment. It is, however, claimed on behalf of the appellant that the claim for ejectment was turned down on the basis of a statement of the landlord that the sub -tenant, the appellant herein, was a lawful tenant. Subsequently, the landlord filed another suit on August 8, 1950 for ejectment and for recovery of rent and according to the plaint, which is annexure 'B' to the aforesaid memorandum of appeal, the earlier suit of the plaintiff for ejectment was dismissed because "sub -letting of part was proved to , prior to the promulgation of Act 19 of 1947". It is further mentioned in the plaint that plaintiff served the defendant "with a notice seeking information about the portion sublet and the rent charged from the sub -tenant." In the plaint the plaintiff also claimed enhancement of rent on account of sub -letting. The plaint further mentions that a notice of ejectment, requiring the tenant to pay enchanted rent or to vacate the premises, had been served by the plaintiff on the defendant. The claim for eviction was, however, not grounded on any sub -letting. According to an order of the trial Court, copy of which is annexure 'B (1)' to the aforesaid memorandum of appeal, a cheque for Rs. 1175 had been given to the landlord by the defendant and it is recorded that the suit was dismissed in accordance with the statement of the parties .This order is dated October 10, 1950 but here again, neither the notice terminating the tenancy nor the statements of the parties ,which formed the basis of the order, have been placed on the record. It is, however, the contention of the appellant that the matter was compromised between the parties as the tenant agreed to increase the rent by virtue of sub -letting in the appellant's favor. This was followed in January, 1965 by an application for the eviction of the tenant under the act. The eviction of the tenant was claimed by this application on the ground that the premises had been sub -let to two sub -tenants, without the written consent of the landlord after June, 1952. It was further stated that the "first floor has been sub -let to one person and the second floor to another." It was further claimed in the application that on August 8, 1964, a notice was given, a copy of which was enclosed with the application. A copy of this application is Annexure 'C' to the aforesaid memorandum of appeal. The application was contested on behalf of the tenant by a written statement, a copy of which is Annexure "D' to the aforesaid memorandum of appeal. In the written statement it was claimed that the first floor of the premises was being used for the purpose of offices by a Union, which was a lawful sub -tenant since 1945, and part of the first floor was the office of the tenant himself. With reference to the second floor, it was contended that the "second floor is in the occupation of Smt. Gaura Devi Nurse who is also a lawful sub -tenant since 1942." The aforesaid reference is to the appellant. It was further contended that the sub -tenants were lawful; that the aforesaid facts had been established in the first suit by the landlord; that is why the prayer for ejectment had been given up; that in the second suit it had been admitted by the landlord that the previous suit for ejectment was dismissed as the sub -tenancy was created prior to the Act of 1947; and that. the question as to the nature of sub -tenancy was, Therefore, res judicata between the parties. In the replication to the written statement, the landlord generally denied the various averments in the written statement and the fact that the sub -tenants were legal sub -tenant was specifically denied. The institution of the earlier proceedings was, however, not denied. A copy of the replication is Annexure 'E' to the aforesaid memorandum of appeal. By an order of May 21, 1968, the learned Addl. Rent Controller, Delhi dismissed the application for eviction as "withdrawn" in view of the statement of the counsel for the parties with permission to the landlord to file a fresh application on the same causes of action as the application, appeared to the Court, to suffer "from technical defect of the service of notice." Here again, the statements of the counsel for the parties, which led to the dismissal, is not on the record. This was followed in April, 1971 by an application under Sec. 19 of the Slum Areas (Improvement & Clearance) Act, by Rameshwar Pershad, respondent No. 1 herein, claiming to be the owners of the property, seeking permission to institute a suit or proceeding or the eviction of the tenant inter alia, on the grounds of subletting. This was granted as the tenant appeared and made a statement that he was not contesting the case and "had no objection to the granting of the permission to the petitioner." The permission was accordingly granted by the Competent Authority by order of April 24, 1971, a copy o!' which is Annexure "C' to the aforesaid memorandum of appeal. Rameshwar Pershad, aforesaid, accordingly filed an application under Sec. 14 of the Act seeking ejectment of the tenant from the premises in dispute, inter alia, on the ground of sub -letting. A copy of this application is not on. the record nor is the notice that may have been served on the tenant terminating his tenancy prior to it. A copy of the order, that was eventually made on November 19, 1971, which is Annexure "H' to aforesaid memorandum of appeal, however, shows that the application was for the eviction of the tenant from both the first and the second floor of the said property. The eviction was claimed, inter alia , on the ground of unauthorised sub -letting and the tenancy of the tenant had been terminated by notice of May 16, 1971. The tenant appeared in Court and "admitted all the allegation of the petitioner to be correct" and the learned Addl. Rent Controller observed: " from the statement on oath of the petitioner coupled with the candid admission of the respondent I am satisfied that the tenant respondent in the previous eviction petition was granted benefit of Sec. 14(2) of the Act and thereafter he again committed default in payment of rent for more than three consecutive months. From the said evidence and the admission of the respondent I am further satisfied that the ground of eviction as contemplated by provisos (b), (d), (e) and (h) of the Act also exists in this case. The tenant respondent has also admitted having received notice of demand and termination of tenancy from the petitioner." The learned Addl. Rent Controller accordingly passed an order of eviction under Sec. 14(1)(a), (b), (d), (e) and (h) of the Act. When the appellant was sought to be evicted in execution of the aforesaid order of eviction, a petition under Sec. 25 of the Act read with Order Xxi and Sec. 151 of the Code of Civil procedure was filed on behalf of the appellant before the learned Addl. Rent Controller seeking dismissal of the execution application of the landlord on the ground that the appellant was a lawful sub -tenant of the second floor of the property in dispute; that Gauri Parshad, the original owner, had admitted the appellant as a lawful sub -tenant in several litigations between him and the tenant; that the respondent Rameshwar Parshad "the alleged heir" and son of late Gauri Parshad had filed an application for eviction against the tenant without impleading the sub -tenants, that the appellant and another, "are in the actual possession of the suit premises since more than 25 years" under an independent right; that the appellant was necessary party to the original proceedings; that the decree -holder procured the above "decree" of ejectment by fraud and in collusion with the judgment -debtor, respondent No. 1 herein that the "decree" was not binding on the appellant and was a nullity and without jurisdiction against the appellant; and that the appellant came to know of the "decree" only when the appellant was sought to be evicted. This petition was resisted by respondent No. 1 herein and, apparently without recording any evidence, the learned Additional Rent Controller dismissed the aforesaid objections by an order made on May 9, 1972 and the only ground considered by the learned Addl. Rent Controller was if the objection petition was maintainable which was answered in the negative on the ground, basing his decision on the decision of the Court in the case of Roshan Lal v/s. Smt. Bhagwati Devi and others,, 1969 R.C.R. 165; Shri Tara Chand v/s. Mst. Marrium Bi and another,, 1970 R.C.R. 438 and Ved Parkash v/s. Rashid and another, : 1971 D.L.T. 191 that the sub -tenant was not entitled to the protection of Sec. 18 of the Act because the appellant "has not alleged even any giving of any notices of her lawful sub -tenancy to the landlord within the time prescribed or manner given in the Rules." It was further held that the appellant was not a necessary party. The aforesaid order was made prior to the two important decisions of this Court on the question i.e. Jagan Nath v/s. Abdul Aziz and others,, 1973 Delhi 9 and Murari Lal v/s. Abdul Gaffar and others,, 1973 R.C.A. 748. The question whether the appellant was a lawful sub -tenant was not decided though assumed and the further question raised in the objections that the eviction order had been obtained by collusion between the landlord and the tenant and by fraud was not considered. It is significant that in his reply to the objections, the landlord had denied the allegation that the appellant was a lawful sub -tenant. Aggrieved by this order, the appellant filed an appeal before the learned Rent Control Tribunal which was dismissed by the learned Rent Control Tribunal by an order made on December 13, 1973. In the course of the aforesaid order, the learned Tribunal held that a sub -tenant could not be deemed to have an independent title to the premises and would not, Therefore, be entitled to the protection given by proviso Sec. 25 of the Act; that the appellant also was not entitled to the protection of Sec. 18 or the Act because the appellant had neither alleged nor proved that a notice under Sec. 17 of the Act envisaged by Sec. 18 of the Act as a condition precedent to the protection, had been given to the landlord in the prescribed manner. The contention of the appellant that inasmuch as the landlord knew that the appellant was a sub -tenant in the premises since prior to the material date, the absence of notice was of no consequence and was a pointless formality was, however, dispelled on the basis of the decision of the Division Bench of this Court in the case of Murari Lal (supra), (5). Reliance on behalf of the appellant on a Single Bench decision of this Court in the case of Jagan Nath (supra) (4) was considered inappropriate in view of the said pronouncement of the Division Bench, which had taken a contrary view, which the learned Tribunal felt impelled to follow. The further contention of the appellant that the Supreme Court had since declined to grant special leave against the judgment in the case of Jagan Nath (supra) (4) and had granted special leave against the decision in the case of Murari Lal (supra) (5) were not considered by the Tribunal of any consequence because neither of the two circumstances , appear to have in any way affected the validity or vitality of the Division Bench judgment nor would such a circumstance provide such reinforcement to the decision of the learned Single Judge in the case of Jagan Nath (supra) (4) which may entitle the Tribunal to prefer it to the decision of the Division Bench. The further contention of the appellant that the impugned order was a nullity, in that, it was not signed on May 9, 1972 when it was announced and purported to be signed was dispelled on the ground that according to the record, the order purported to be signed on the date it was announced and presumption of correctness attached to judicial proceedings and records. Learned Tribunal, however, noticed that on May 10, 1972, the appellant had made an application before the Tribunal for the transfer of the objection petition from the then Addl. Rent Controller to some other Court on the allegation that the learned Controller announced the order on May 9, 1972 but had not signed it on that day and that the application was dismissed by the learned Tribunal with the objection that "the appellant could raise this point in the appeal." The learned Tribunal also noticed that the appellant had filed a similar affidavit in which it was stated that the impugned order, though announced on May 9, 1972, had in fact been signed on May 11, 1972. It was also noticed that the counsel for the appellant had filed a similar affidavit in which it was stated that the order had been signed on May 12, 1972. The learned Tribunal, however, rejected the affidavits because of the discrepancy in the date between the two and preferred the affidavit filed on behalf of respondent No. 11 landlord that he was personally present in the Court when the order was announced on May 9, 1972 and that it was signed at that time. It is this order of the learned Tribunal which is sought to, be challenged in the present Second Appeal.

(3.) Shri G. L. Seth, learned counsel for this appellant bag assailed before me the order of the learned Rent Control Trib.B)oal as in. deed that of the Controller on a number of grounds.