SUDARSHAN KUMAR Vs. ASHOK KUMAR

JUDGEMENT

(1.) THIS is tenant's petition against whom ejectment application was dismissed by the Rent Controller but eviction was passed in appeal Bhim Sain was the original landlord of the shop in question who died on 27. 12. 1982. On his death, Ashok and Ors. succeeded him. Bhim Sain during his life time had filed two civil suits for ejectment of his tenants from the two shops. Sudarshan Kumar, tenant was one of them who was the tenant under Bhim Sain. Ashok Kumar who claimed himself to be minor at the time of death of Bhim Sain, filed the present ejectment application on 10. 9. 1985 under Section 13 (3-A) of the Haryana Urban (Control of Rent and Eviction) Act, 1973 The application was resisted by the tenant on the ground that the landlord has no locus standi and he is estopped from filing the present application by his act and conduct; that the petition is barred by the principle of res judicata as the matter between the parties had already been decided by the Additional District Judge, Gurgaon vide his order dated 23. 3. 1985 in an appeal titled Sudarshan Kumar v. Tiko Bai. According to the tenant Bhim Sain had filed two suits for ejectment of his two tenants. The suits were decreed by the trial Court but in appeal the parties have compromised, and according to the said compromise one shop was vacated by the tenant whereas the shop in dispute was retained by tenant Sudarshan Kumar on enhanced rent Ashok Kumar was party to the said compromise and it was specifically written that it was for the benefit of the minor Ashok Kumar. The learned Pent Controller came to the conclusion that "that under such circumstances of the case T am of the view that compromise arrived at between the parties in civil appeal No. 37/13 of 13. 3. 1984 is binding on the parties. The petitioner was duly represented by her mother Smt. Tikko Bat, who acted as next friend and guardian As per the certificate of Sh. K. R. Malik, Advocate, who is counsel for the petitioner in this case also had represented the landlord in that case, the compromise was in the interest of the parties. The compromise was arrived at with the permission of the court which clearly shows that before granting permission to compromise the appellate authority has watched the interest of the minor. Therefore, the petitioner and the other landlords are estopped by the terms arrived at between the parties. The petitioner has waived his right of seeking ejectment of respondent No. 1 on the ground of minor attaining majority under Section 13 (3-A) of the Act. " In view of this finding the ejectment application was dismissed on 21. 4. 1988. In appeal the learned appellate authority reversed the said finding of the trial Court and came to the conclusion that in the earlier suit a compromise was arrived at between Smt. Tiko Bai on behalf of the minor and according to that compromise, the possession of the shop in dispute was ordered to remain with Sudarshan Kumar tenant while the other shop, which was in possession of the father of the tenant, was ordered to be vacated According to the appellate authority, the said compromise does not satisfy the provisions of Order 23, Rule 3 of the Code of Civil Procedure and therefore, the same was not binding on the landlord Ashok Kumar. Consequently, the eviction order was passed.

(2.) LEARNED counsel for the tenant petitioner submitted that where the compromise did not satisfy the provisions of Order 23 Rule 3 of the Code of Civil Procedure it could not be agitated before the Rent Controller Earlier, the compromise was arrived at in a civil Court and therefore, the only course open to the petitioner-landlord was to make an application to that very Court where the compromise was arrived at. In rent proceedings, the authorities under the Act could not sit over the judgment of the civil Court. Thus argued the learned counsel the whole approach of the authority in this behalf was wrong and illegal. Therefore, the eviction order was liable to be set-aside. After hearing the learned counsel for the parties, I find force in the contention raised on behalf of the petitioner. The earlier compromise was arrived at between the parties in appeal arising out of the suit. Admittedly, Ashok Kumar, landlord was party thereto and was being represented through his mother. There was a certificate given by the Court that the said compromise was in the interest of the minor which was arrived at on 21. 3. 1985 That being so, the present ejectment application filed by Ashok Kumar on 10. 9. 1985, was not maintainable and be was debarred to seek ejectment of the tenant in view of the said compromise between the parties The whole approach of the appellate authority in this behalf was wrong and illegal whereas the finding of the trial Court in this behalf was correct. Consequently, this petition succeeds. The order of the appellate authority is set aside and that of the Rent Controller, dismissing the ejectment application is restored with costs.