SURINDER GUPTA Vs. HUKAM CHAND

JUDGEMENT

(1.) CIVIL Revision No. 5979 and 6063 of 2007 are respectively petitions arising out of petitions filed by the same landlord in relation to the ground floor and the first floor of the building respectively. The landlord's requirement to the premises under Section 13-A of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as the 'Act') was upheld by the Rent Controller and the aggrieved tenants are the revision petitioner before this Court. The grounds of challenge are the same in both the petitions and therefore they are disposed of by a common order. The objections by the tenants are taken on five different grounds. 1. The landlord's withdrawal of an application filed in respect of the property without any liberty obtained from the Rent Controller for prosecuting a fresh application on the same ground constituted a bar under Order 23 Rule (1), (3) and (4) of the Civil Procedure Code.

(2.) THE affidavit given by the party in Court in support of the chief examination was not properly verified and therefore could not be relied upon.

(3.) THE sale deed in favour of the landlord had not been properly proved. 2. As regards the bar of the institution of the fresh petition the basis of the tenant's contention was that the landlord had earlier filed an application for eviction on 29.7.2005 and objection had been taken by the tenant that as per the contentions of the landlord he was due for retirement only on 31.7.2009 and the petition had been filed more than one year before his actual date of retirement and hence was pre-mature. Based on such a contention, the landlord had made a statement that in view of the submissions made by the tenant, the petitions that he had filed could be withdrawn. The Rent Controller had also passed an order on 22.11.2005 that the landlord was permitted to withdraw the petition. The learned Sr. counsel appearing on behalf of the tenant argued that if the previous petition contained formal defect in the matter of institution of the petition and it was found that objection of the tenant was tenable that was a ground for the landlord to seek for permission for withdrawal with liberty to file a fresh petition on the same cause of action. Order 23 Rule 1 (4) clearly laid down that if a withdrawal was made without obtaining such permission to file a fresh petition, the petition itself was not maintainable. He refers to the objection regarding the non-maintainability of the petition without seeking liberty to file a fresh petition and seeks strength to his case by reference to a decision of this Court in Mehtab Singh v. Tilak Raj, 1988(1) RCR(Rent) 159 : AIR 1989 P&H 12 where this Hon'ble Court had held that the provisions of Order 23 Rule 1 clause (4) was applicable to the Rent Control proceedings also. Similar was the judgment in Ram Sarup Bhalla v. Barkat Singh, reported in 1990(2) RCR(Rent) 392 (P&H) where this Court had held that the application for ejectment by a specified landlord filed under Section 13-A which had been withdrawn without permission of the Rent Controller to file a fresh application, the second petition would be barred. The Supreme Court had occasion to consider the case arisen out of Bombay Tenancy Act in V.C. Charati v. Hussein Nhanu Jamadar, reported in JT 1998(8) SC 120 where it held that even a wrong decision if not challenged would constitute the bar of res judicata. 3. The propositions laid down by these decisions strike the other side of the pendulum in certain other decisions laid down by this Court in Mangal Sain v. Jiwan Dass, reported in 2003(1) RCR(Rent) 54 (P&H) where in the proceedings dealing with Haryana (Control of Rent and Eviction) Act, 1973, this Court held that if a landlord is allowed to withdraw the ejectment application on the ground of formal defect, it has to be inferred that the Court allowed the landlord to file a fresh application. The fact that the order itself did not make a reference granting liberty to file a fresh petition, as such in the judgment was not material. The Supreme Court held in N.R. Narayan Swamy v. B. Francis Jagan, reported in 2001 HRR 579 held that successive suits for eviction by a landlord on the ground of bona fide requirement if withdrawn without pressing the ground of eviction, the second suit on the same ground was not barred by Order 23 Rule 1(4). A Full Bench of this Court held in Ram Dass Singh v. Sukhdev Kaur that the provisions of Order 23 Rule 1 (3) were not applicable to the proceedings under the Act. The decision of the Full Bench came on reference from a Single Judge who found that there was contradictory opinion on the same subject in Madan Lal and others v. Ram Lal, (1978) 80 PLR 388 and Shakuntala Devi v. Ramesh Kumar, reported in 1980(1) RLR 327 and noticing that this was an important question of law and authoritative pronouncement was necessary. The Full Bench answered the reference by holding that the provisions of Order 23 Rule 1(3) of the Code of Civil Procedure was not applicable to the proceedings under the Act. 4. A proper consideration of all the decisions, I am of the view, lay down that an order of withdrawal must be always understood under the particular circumstance when withdrawal was sought. I have already referred to the fact that the tenant had made a specific contention in the earlier round of litigation about the maintainability of the petition that the landlord had filed the petition even one year prior to the actual date of retirement and hence the petition was not maintainable. The landlord's petition for withdrawal was sought on an express statement referring to the fact that the petition had been filed more than one year before the date of his actual retirement and hence the petition was being withdrawn. The Court, while merely passing an order for withdrawal, is deemed to have passed an order only on the basis of what was contended by the parties namely of the tenant's objection regarding the pre-mature filing of the petition and the non- maintainability of such a petition and the landlord acted such an objection and sought for withdrawal. It is not a case where the landlord has sought for a liberty which was refused by the Court. On the other hand, it was an action of the landlord in responding to an objection about the maintainability as stated by the tenant. The provisions of Order 23 itself is raised on a principle of Public policy that a defendant shall not be vexed with the same nature of suit again and again. It is indeed a provision to protect a defendant but if a defendant had himself invited a second petition by his objection that the earlier petition was pre-mature or not maintainable, he cannot be heard to contend that the second petition was also not maintainable. It will be really a case of estoppel operating against the defendant to contend that the second petition was barred. I, therefore, reject the contention raised on behalf of the tenant that the subsequent petitions were not maintainable.