BALDEV PARSHAD Vs. RAJ KUMAR

JUDGEMENT

(1.) THE tenant was sought to be evicted on two grounds namely default in payment of rent and subletting of premises by the first respondent. The Rent Controller found that the tenancy in favour of the second respondent had been established and dismissed the petition against the first respondent but curiously held that sub-tenancy in favour of the second respondent had been established. He again found that deposit of rent could be lawfully made only by the tenant and tender by sub-tenant was not valid and the first respondent having not deposited or paid the rent, the ground of eviction for non-payment of rent was also available to the landlord.

(2.) THE threshold argument of the counsel for the tenant before this Court was that the same landlord had filed an earlier application on the same grounds against the same parties on 25.10.1985 and application was pending when he filed the present petition on 02.09.1986. The statement had been filed on 19.10.1986 and subsequent to the filing of the statement by the tenant, the landlord had the first petition dismissed for non-prosecution. The landlord had not taken any permission for prosecuting another petition on the same ground and according to the petitioner, the landlord who had allowed an earlier petition, to be dismissed is deemed to have abandoned his case and he was barred from prosecuting a subsequent petition on the same grounds. In support of his contention, the petitioner relies on a decision of this Court in Mehtab Singh v. Tilak Raj Arora and another, 1988(1) RCR(Rent) 159 : 1988 RLR 151, which posed the question whether a second petition for ejectment of the tenant would be competent on a ground on which the earlier petition was got dismissed as withdrawn without liberty to file a second petition. A Division Bench of this Court gave a categoric pronouncement that the dismissal of the earlier petition without such liberty constituted a legal bar and a second petition for ejectment would be not maintainable. The counsel for the revision petitioner also relies on two other decisions of the Hon'ble Supreme Court in Mst. Jamshed Jahan Begum v. Lakhan Lal and others, AIR 1971 SC 1678 and Bhanwar Lal v. T.K.A. Abdul Karim, 1993 Supp (1) SCC 626 that an argument on a point of law could be canvassed for the first time even before the Hon'ble Supreme Court provided the factual foundation for the same existed on record. It was the counsel's submission that since the dismissal of the first petition was occasioned subsequent to the filing of the statement in the written statement, there was no occasion for the second respondent to plead the legal bar in specific terms although there have been a general contention raised in defence that the petition was not maintainable. However, according to him, the issue was specifically canvassed before the Rent Controller and considered by the Rent Controller but the controller held the contention to be also as not worthy of acceptance. The parties knew that the plea of bar had been canvassed even at the earliest occasion. The decisions of this Court on the maintainability of the second petition and Hon'ble Supreme Court relating to the tenability of the legal contention to be raised even without specific pleas are formidable enough to escape attention. The petition ought to have been thrown out as not maintainable and the findings to the contrary before the trial Court and the Appellate Court are clearly wrong. The revision petition deserves to be allowed on that short ground.

(3.) THE appreciation of evidence by the trial Court and the Appellate Authority in this regard are clearly untenable and the ultimate conclusion arrived at by the respective authorities cannot stand any legal scrutiny. The learned counsel for the revision petitioner has adverted to several decisions on the issue of the nature of proof of subletting but I am not referring to them as I am deciding the case on the elementary principles of appreciation of evidence and the legal principles that can afford proof of sub-tenancy.