J L JHANB Vs. SHEELA DEVI

JUDGEMENT

(1.) This second appeal is directed against the judgment of the Additional Rent Controller dated 1st August 1986 and the Rent Control Tribunal dated 23rd August 1986 whereby both the courts below allowed the objections filed by respondent no. 2 under Section 25 of the Delhi Rent Control Act read with Section 144 and 151 of the Civil Procedure Code . and ordered restituation of the tenanted premises to respondent No. 1.

(2.) The facts of the case lie in a very narrow compass. Shri J.L. Jhanb obtained on order of eviction against one Smt. Sheela Devi on 25th September 1985 in respect of the entire ground floor, except passage for approaching the second floor and third floor of premises bearing no 28/12 East Patel Nagar, New Delhi including the garrage in which respondent no. 2 was carrying on business in the name and style of M/s. Kerala Concern. In execution of that order respondent no. 2 was thrown out of the shop on 2nd July 1986 and vacant possession was given to the attorney of the decree holder. Thereafter, respondent no. 2 filed objections on 5th July 1986 praying that the eviction order passed on the basis of fraud committed on the court by the attorney of the decree holder be quashed and set aside and the objector be restored back in possession. In the objections, respondent no. 2 took several pleas and inter alia asserted that respondent no. 2 is a tenant in his own right and the question of bis tenancy had been finally settled by an appropriate court in a previous litigation. It was also contended that the appellant herein had filed separate eviction petition being S. No. 8 of 1984 against respondent no. 2 before the Additional Rent Controller, Delhi which is still pending Respondent no. 2, therefore, claimed an independent right as a tenant and prayed that possession be restored back to him.

(3.) A preliminary objection regarding maintainability of this application under Section 25 of the Delhi Rent Control Act read with Section 144 & 151 Civil Procedure Code . was taken by the appellant herein before the -Additional Rent Controller. The Additional Rent Controller by his order dated 1st August 1986 held that the application under Section 25 of the Delhi Rent Control Act was maintainable and respondent no. 2 is a tenant in the garrage at the ground floor of the suit premises in his own right and, therefore, ordered restoration of possession to him. Against this order, the appellant herein, filed an appeal before the Rent Control Tribunal on 23rd August 1986. Before the Rent Control Tribunal the appellant did not assail the finding of the Additional Rent Controller regarding the maintainability of the application under Section 25 of the Delhi Rent Control Act, however asserted that the finding that the original order was obtained by the appellant by fraud was not correct.