PITAMBER LAL Vs. RAM LAL

JUDGEMENT

(1.) THIS is tenant's petition against whom the ejectment application was dismissed by the Rent Controller but an eviction order was passed, in appeal by the Appellate Authority.

(2.) ORIGINALLY , the premises in dispute belonged to one Sher Singh. He sold the same vide sale deed dated 6th February, 1972, in favour of the present landlords-respondents, i.e., Lurinda Ram, Ram Lal and Chander Bhan. they filed the present application on 22nd September, 1975 for ejectment of five persons, including the petitioner Pitamber Lal. The application was filed inter alia on the grounds of subletting by Matwal Chand tenant and change of user and that the building had become unsafe and unfit for human habitation. During the pendency of the ejectment application a compromise was arrived at between the landlords and Matwal Chand tenant and Moti Ram, the sub-tenant and, therefore, on the basis of the said compromise and order of eviction was passed in terms of the compromise against all the four respondents except Pitamber Lal petitioner. Ultimately, the petition was contested on behalf of Pitamber Lal, inter alia, on the ground that Matwal Chand was the tenant of the demised premises and he was authorised by his landlord Sher Singh, in writing to sublet the premises and, therefore, the ground of subletting was not available to the landlords. It was also denied that there was of any change of user or that the building had become unsafe and unfit for human habitation as alleged. The learned Rent Controller on the question of sub-letting came to the conclusion that Pitambar Lal (who was respondent No. 4 in the ejectment application) is a tenant under the Act as he was inducted by Matwal Chand tenant who was authorised in writing by the earlier landlord Sher Singh to sublet the premises and therefore, the ground of subletting was not available to the landlords. On the question of change of user, the learned Rent Controller found that in the present case no where was there any stipulation that Pitambar Lal will run a particular business in the disputed premises. That being so he can run business of parc-hun articles or cigarettes, paan bidis or cold drinks, etc. It was further found that otherwise also this does not amount to change of user because the term 'business' is of wide amplitude and it covers various sorts of business activities. On the third ground that the building had become unsafe and unfit for human habitation, the learned Rent Controller found that the landlords have not been able to prove that the disputed premises are unsafe and unfit for human habitation. It was observed by the learned Rent Controller that the landlords had merely proved that there are two cracks in the Northern wall of the disputed premises but this alone was not sufficient to hold that the disputed premises were not in a safe and fit condition. As a result of these findings, the ejectment application was dismissed. In appeal, the learned Appellate Authority reversed the said findings of the Rent Controller on all the three counts and as a result thereof, eviction order was passed against Pitambar Lal. Dissatisfied with the same he has filed this revision petition.

(3.) ACCORDING to the learned counsel for the landlords, vide compromise (EX AX) Matwal Chand was only authorised to sublet for one year and if he inducted any person after the expiry of the said period he could not take the benefit of the document EX.AX. According to the learned counsel admitted by Pitambar Lal, tenant was inducted in the year 1967 and, therefore, he was liable for ejectment. In support of this contention, reference was made to Shri Kidar Nath v. Smt. Kartar Kaur 1969 PLR 186. However, from a perusal of two documents Exs. AX and RX it is quite evident that Matwal Chand was authorised in writing by the original landlord Sher Singh to further sublet the premises. In the compromise deed Ex.AX. there is no period fixed as such. The period of one year was fixed of the purpose of rent and no period was fixed for the tenancy or vacating the premises. Moreover, in the year 1958 when Sher Singh landlord filed an ejectment application against Matwal Chand and others he took the someresult and denied the compromise Ex.AX in toto. he never took the plea therein that Matwal Chand was only authorised for one year and after the expiry of one year any tenants inducted by him susequently were liable expiry of one year any tenants inducted by him subsequently were liable for ejectment. The learned Rent Controller in the said judgment EX.RX, dated 7th February, 1959, found that in view of the compromise Ex.AX, Matwal Chand was authorised to sublet the premises, and therefore, the ground of subletting failed. In view of the said judgment EX.RX dated 7th February, 1959, it is not open to the landlords now to urge that subletting was permitted for one year only. If it was so it was open to Sher Singh the original landlord, at the time he filed the ejectment application in the year 1958 to take the said plea but no such plea was taken by him. Rather he totally denied the compromise Ex.AX. In these circumstances, the judgment Ex.RX operates as res judicata between the parties, even if this point was not specifically pleaded at that time when admittedly this plea was available to Sher Singh at that time. No such plea was taken and, therefore, on the principle of constructive re judicata the judgment FX.RX stands in the way of the landlords. By virtue of the compromise Fx. AX, Matwal Chand was authorised to sublet the premises and if Matwal Chand sublet the premises to Pitambar Lal petitioner in view of the said compromise in writing, the ground of subletting was not available to the landlords. The approach of the learned Appellate Authority in this behalf is wholly misconceived when it held that Pitambar Lal was inducted as a tenant after the expiry of the period of authority in favour of Matwal Chand. As observed earlier, no such period was fixed in the compromise Fx.AX and in any case no such plea was taken in the ejectment application filed by Sher Singh in the year 1958 which plea was available to him. Thus, the finding of the Rent Controller in this behalf is restored and that of the Appellate Authority is reversed.