VED PARKASH Vs. QUMERUDDIN

JUDGEMENT

(1.) THE facts giving rise to this second appeal which is directed against dated 23rd September, 1983 of the Rent Controller and 4th December, 1983 of the Rent Control Tribunal are rather unfortunate. Succinctly it may be stated that way back in 1961 the appellant obtained an order of eviction against the tenant. After obtaining permission from the Competent Authority under the Slum Act, he took out execution of the said order. However, objection was raised by Abdul Rashid respondent No. 2 but he was not liable to be evicted in execution of the eviction decree as he was in possession of the premises in question in his own right and not on behalf of the judgment-debtor. The litigation went on for several years. Eventually the execution application was dismissed by the executing court on 29th October, 1982 in default. The appellant moved an application for restoration of the execution application but the same was dismissed by the Rent Controller vide order dated 23rd September, 1983. He went in appeal to the Tribunal but met with no success. Hence, this second appeal.

(2.) THE contention raised by the learned counsel for the appellant precisely is that 29th October, 1982 was not a date of hearing in the execution proceeding inasmuch as the objection petition filed by respondent No. 2 under Section 25 of the Delhi Rent Control Act (for short the Act) was still pending and had not been disposed of. It is pointed out that the evidence of the objector-respondent No. 2 had already concluded and even evidence of the decree-holder-appellant had been partly recorded. So, on the said date the remaining examination and cross-examination of the appellant was to take place. Hence, the argument advanced precisely is that without disposing of the objection petition one way of the other it was not open to the executing court to dismiss the execution application itself in default of appearance of the decree-holder. The second ground of attack on the impugned order is that the execution proceedings had been stayed and, therefore, the execution application could not be dismissed in default on the said date unless the stay order was vacated.

(3.) OBVIOUSLY the learned Tribunal has mixed up the two cases, namely the execution application and the objection petition with the result that even while seeing the force of the argument of the counsel for the appellant he arrived at the wrong conclusion on the hypothesis that the objections must have been allowed. He did not consider the other hypothesis that the objections could be dismissed on merits even on the evidence already produced by the parties before him. It may be pertinent to notice here that as far back as 5th September, 1980 the objector had made a statement to the effect that he had effected a compromise with the landlord, that he was withdrawing his objection petition and that he would deliver vacant possession of the premises in question to the landlord-decree-holder by 1st October, 1980 failing which the decree-holder would be entitled to execute the decree. Strangely enough no order in terms of the statement made by the objector was made on the said date. The only possible order could be dismissal of the objections. However, the case was adjourned to 10th October, 1980 for further order. Unfortunately for the appellant everybody seems to have forgotten the aforesaid statement and the proceeding in respect of objection petition went on. That is why the case was fixed for the remaining examination-in-chief and cross-examination of the appellant on 29th October, 1982 on which date he failed to appear. Had the executing court cared to notice the aforesaid statement of the objector the result would have been quite different.