MAHABIR Vs. VIJAY KUMAR GUPTA

JUDGEMENT

(1.) The short point which arises in this appeal is as to whether a person in established possession of some property, although unauthorised, can be permitted to repair the same to make it habitable during the pendency of a suit for possession filed by the real owner.

(2.) Admittedly, Shri Vijay Kumar Gupta, respondent No.1 is the owner of property bearing Municipal No.21, Krishan Kunj Extension Part-ll, Laxmi Nagar, Delhi and he has entered into an agreement to sell the same in favour of respondent No.2,Smt. Neeti, videagreementdated20.10.1984. it is also the admitted case that the appellant Shri Mahabir has been in occupation of one room, a kitchen and courtyard of the said property at least for the last 20 years. Earlier the appellant had field a suit for a decree of permanent injunction for restraining respondent No.1 from dispossessing the appellant from the premises in question except in due course of law which suit was decreed, but was remanded by the appellate court vide judgment dated 23.11.1984. In the meanwhile respondent No.1 had agreed to sell the property to respondent No.2 and the appellant herein did not appear in the proceedings and the suit was dismissed in default. Thereafter the appellant filed another suit bearing Suit No.6/86 against respondent No.2 and her husband praying for decree of permanent injunction on the averments that he was a tenant of the sit premises and the respondent No.2 and her husband be restrained from dispossessing him except in due course of law. That suit was disposed of by the learned Sub Judge by judgment and decree dated 15.1.1990 whereby it was held that the appellant was not a tenant of the suit premises, but the sit was decreed with the relief that he could not be dispossessed except in due course of law. Thereafter, both the respondents herein have filed a suit for possession in respect of the said premises against the appellant on the averments that the appellant had been appointed as a care-taker of the property in question by the respondent No.1 and that his licence was terminated and thereafter he became an unauthorised occupant thereof. The appellant has put in contest and again pleaded that he is a tenant of the suit premises and that the civil court has got no jurisdiction to entertain and decide the suit.

(3.) In the above proceedings the appellant filed an application under Order 39 Rule 1 read with section 151 C.P.C. with the averments that the room in his occupation is badly damaged and the roof thereof needs extensive repairs, and the replacement of three kadis and 4/5 stone slabs, without which the same is not habitable. This application was opposed by the respondents on the pleas that the appellant had no right to carry out the said repairs, that according to him, he was a tenant in the suit premises and as such he could approach the Rent Controller under Section 44 of the Delhi Rent Control Act, 1958 (fro short the Act),and that the application has been field mala fide only with a view to damage the suit property. After hearing the counsel for the parties and on a perusal of the record, the learned Sub Judge dismissed the application of the defendant/appellant by the impugned order dated 28.7.1994 which is being assailed by way present appeal. 1. I have heard Shri Dhingra, the learned counsel for the appellant and Shri Chandna, the learned counsel for the respondents. I am proceeding with the assumption that the appellant is to a tenant of the suit premises, it is the admitted case of the respondents themselves in para 2 of the reply/counter filed by them in this Court that the appellant has been occupying the premises in question for the past more than 20 years. In other words, the appellant is in established possession/ occupation thereof. Thus, it can be said that he has got a possessory title in respect of the premises in question till he is evicted or dispossessed in accordance with law by the real owner thereof. Once there is a dispute between the parties as to whether the appellant is a tenant of the suit premises or not, the plea of the respondents that the appellant should have recourse to Section 44 of the Act is not sustainable in the eyes of law. Even otherwise, a tenant is also not obliged to have recourse to Section 44 of the Act if he wants to carry out repairs in the tenanted premises at his own cost and risk. It is only when the liability to carry out repairs in the tenanted premises or to make the tenanted premises habitable is to be fastened upon the landlord, the tenant is required to apply under Section 44 of the Act after serving a necessary notice upon the landlord as required by law. Since in the present case the question as to whether the appellant is a tenant or not and whether this plea is barred by res judicata or not, are yet to be decided, the question of invoking the provisions of Section 44 of the Act by the appellant does not arise.