VEENA GUPTA Vs. HARCHARAN NARANG

JUDGEMENT

(1.) THIS is defendant's regular second appeal against the judgment and decree of the Additional District Judge decreeing the suit of the Plaintiff thereby restraining the defendants from dispossessing him on the basis of ejectment order dated 8.10.1985.

(2.) PLAINTIFF filed a suit for declaration to the effect that the previous ejectment proceedings including the impugned ejectment order dated 8-10-1985 passed by Rent Controller has become infructuous and a new tenancy has come into existence in respect of the premises in dispute between the Plaintiff and defendant No.1 and so prayed for injunction restraining the defendants from executing the ejectment order dated 8-10-1985. As per averments in the Plaint it was stated that Plaintiff is the Proprietor of M/s Narang Heat Treatment Centre and is running his business of heat treatment in the rented premises. This premises was taken on rent from Smt. Shanti Devi vide lease deed dated 18-4-1979. Smt. Shanti Devi has died and the property has been bequeathed in favour of Smt. Veena Gupta on the basis of a Will dated 12-12-1979 and so she is the sole owner of the premises in dispute. It has been further stated that an order of eviction was passed against the plaintiff on an ejectment application under Section 13 of the Haryana Urban Control of Rent and Eviction Act on the ground of non-payment of rent and that appeal against the order of Rent Controller is pending before the appellate authority. It is during the pendency of the appeal that matter has been compromised and the mutual content the monthly rent has now been increased from Rs.750/- to Rs.1,000/- w.e.f. 18-12-1985. On account of the fresh agreement arrear of rent at the increased rate of rent has already been paid to the defendants by two Bank drafts which have been encashed and so these ejectment orders and the appeal pending have become infructuous.

(3.) CHALLENGING the judgment and decree of the Lower Appellate Court the learned counsel for the appellant has argued that judgment and decree is not only illegal and invalid but in fact no such suit could be filed by the Plaintiff. According to the counsel the Plaintiff is clearly guilty of withholding the material information from the Court but for which the suit of the Plaintiff could not be decreed. Elaborating the counsel argued that admittedly an order of eviction was passed against the Plaintiff on the ground of non-payment of rent as well as for causing material impairment to the building by Rent Controller vide order dated 8-10-1985 which order was affirmed by the appellate authority on 11-9-1986. Not only this, a further revision against the order of the appellate authority was dismissed by this Court on 26-11-1986. In view of the affirmation of the order of the Rent Controller by the appellate authority and the dismissal of the revision petition by this Court plaintiff in fact could not maintain any such suit and so the Courts below have erred in entertaining and the appellate Court in decreeing as well. The present suit was also not maintainable in view of bar of Section 47 CPC and Section 41 (h) of the Specific Relief Act and so the judgment deserves to be set aside thus, dismission the suit of the plaintiff.