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Ved Parkash Vs. Chela Ram - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 163 of 1985
Judge
Reported inAIR1986P& H1
ActsHaryana Urban (Control of Rent and Eviction) Act, 1973 - Sections 13, 13(2), 13(3), 13(7), 14 and 15(2); Code of Civil Procedure (CPC), 1908 - Order 23, Rules 1 and 1(2)
AppellantVed Parkash
RespondentChela Ram
Cases ReferredKrishan Kumar v. State of Punjab
Excerpt:
.....a landlord for th eviction of a tenant is frivolous or vexatious, the controller may direct that compensation not exceeding five hundred rupees be paid by such landlord to the tenant......eviction application was not maintainable in view of the order dated march 24, 1982, passed by the rent controller in the earlier eviction application filed by the landlord against the tenant on the same cause of action. consequently, a preliminary issue was framed as to whether the instant ejectment application was barred by the principle of respondent judicata. the learned rent controller found that the application was not maintainable in view of the earlier order passed by the rent controller dated march 24, 1982, in the the earlier ejectment application filed by the landlord against the tenant. consequently, the ejectment application was dismissed. dissatiisfied with the same, the landlord filed an appeal before the appellate authority. therein, it was observed by the appellate.....
Judgment:
ORDER

1. The landlord Chela Ram filed an ejectment application undner S. 13 of the Haryana Urban (Control of Rent and Eviction Act, 1973, (hereinafter called the Act) against the tenant Ved Parkash inter alia on the ground that he had impaired the value and utility of the demised premises. In the reply filed on behalf of the tenant, a preliminary objection was raised that the eviction application was not maintainable in view of the order dated March 24, 1982, passed by the Rent Controller in the earlier eviction application filed by the landlord against the tenant on the same cause of action. Consequently, a preliminary issue was framed as to whether the instant ejectment application was barred by the principle of respondent judicata. The learned Rent Controller found that the application was not maintainable in view of the earlier order passed by the Rent Controller dated March 24, 1982, in the the earlier ejectment application filed by the landlord against the tenant. Consequently, the ejectment application was dismissed. Dissatiisfied with the same, the landlord filed an appeal before the Appellate Authority. Therein, it was observed by the Appellate Authority,--

'I am of the opinion that the present pettition cannot be said to be barred merely because it has been filed on the same grounds and same cause of action on which earlier petition filed by him was dismissed, as there has beben no final adjudication of the point in controversty on merits and the earlier petition was summarily dismissed without there being a prayer made by the petitioner for the purpose.'

In view of this finding, the order of the Rent Controller was set aside and the case was sent for trial on merits. Dissatisfied with the same, the tenant has filed this revision petition in this court.

2. The learned counsel for thye petitioners contended in the first instance that the order of the Rent controller dated March 23, 1984, was not appealable as such,a as according to the learned counsel, the said order could not be said to have been passed under S. 13 of the Act as only the orders passed under S. 13 are appealanle as provided under S. 15(2) of the Act. According to the learned counsel, since the order was not passed on the merits of the case, it could not be said that it was an order under S. 13 of the Act. At the most, according to the learned counseel, it would be an order passed under S. 14 of the Act and, therefore, not appealable. In support of the contention, the learned counsel relied upon Daya Nand v. Bir chand (1983) 85 Pun LR 775; (AIR 1983 Punj & Har 356) (FB).

The learned counsel further contended that on this very ground, the earlier eviction application filed yby the landlord against the tenant was dismissed as withdrawn by the Rent controller vide order dated March 24, 1982, and, within 12 days thereof, the eviction application out of which the revision petition has arisen, was filed on the same cause of action. Thus, argued the learned counsel, the Rent Controller rightly found that the instant eviction application was barred in view of the earlier order dated March 24, 1982. According to the learned counsel, the view taken by the appellate Authority in this behalf was wholly wrong, illegal and misconceived. On the other hand, the learned counsel for the landlord submitted that the ordeor passed by the Rent controller dismissing the ejectment application was an order under S. 13 of the Act, hence it was appealable as such. Accoulding to the learned counsel, the reasons given for dismissing the application may be any, but the application made was an application for eviction of the tenant under s. 13 of the Act, which hahs been dismissed by the Rent Controller on the ground that the same was not maintainable, in view of the earlier order dated March 24, 1982. thus, according to the learned counsel, the dismissal of the ejectment application was under S. 13 of the Act, and, therefore, the appeal was rightly filed before the Appealate Aauthority. The lealrned counsel further submitted that the order passed by the Rent Controller earlier dismissing the previous ejectment application of the landlord as withdrawn against the tenant was without jurisdiction. The landlord made the application in order to file as fresh one. That application could either be dismissed or accepted as a whole. If the permission was not granted to file a fresh one on the same cause of action, the same could not be dismissed as withdrawn as it was never the prayer of thelandlord. In support of this contention, the learned counsel relied upon Krishan Kumar v. State of Punjab, 1976 Rev Lr 70.

3. I have heard the learned counsel for the parties at a grat length and have also gone through the relevant orders.

4. It may be that the landlord filed the ejectment application earlier on the ground that the tenant had impaired the value and utility of th epremises. In the said eviction application, the landlord sought the permission of the Rent controllelr to withdraw the same with premission to file a fresh application on nthe same cause of action. However, the Rent Controller did not grant the permission for filing a fresh application on the same cause of action, but dismissed the same as withdrawn vide order dated March 24, 1982. Prima facie the said order was invalid and was of no consequence. At least, it did not debar the landlord frorm filing a fresh eviction application on the same cause of action. Reference in this behalf may be made to Krishan Kumar's case (1976 Rev LR 70) (supra), wherein it was held that under O. XXIII R. 1., civil P.C., the plaintiff has got an absolute right to withdraw the suit and the permission of the court is not required and the plaintiff shall (not?) be precluded from instituting any fresh suit in respect of the same subject matter in view of the provisions of R. 1(3). However, if the plaintifif appliies under R. 1(2), O. XXIII of the civil P.C., it is not open to the court to treat the application under R. 1(2) without any condition and to grant the prayer for withdrawal and refuse the prayer to bring a fresh suit. The prayer in the application under R.1(2) must be treated as one and the court may either reject the entire prayer or allow the entire prayer and it cannot split up the application and grant a part of it and reject the remaining of it. If the plaintiff does not desire to withdraw from the suit, unless permiission to bring a fresh suit is granted and the court considers that such is granted and the court considers that such permission should not be granted then the proper course is simplys to dismiss the application and the suit cannot be dismissed. The order dismissing the suit as withdrawn and rejection permission to file a fresh suit on the same cause of action is invalid and is not sustainable at law. Apart from the above, the provisions of O. XXIII of the civil P.C. as such are not applicable to the proceedings under the Act, though under S. 14, the controller shall summarily reject any application under sub-section (2) or (3) of S. 13 which raises substantially the issues as have been finaly decided in any formerr proceedings under the Act. Admittedly, in the earlier ejectment applicatiton, the plea taken by the landlorod that the tenant had impaired the value and utility of the premises, in question was not finally decided. As a matter of fact, the application was dismissed as withdrawn.. In this view of the matter, S. 14 of the Act, was not at allattracter. Apart from that, there is no provision in the Act where an ejectment application could be ddismissed summarily as such. In case landlord files frivolous or vexatious applications for hahrassing the tenant, then the remedy is provided under S. 13(7) of the Act, which contemplates that where the controller is satisfied that any application made by a landlord for th eviction of a tenant is frivolous or vexatious, the controller may direct that compensation not exceeding five hundred rupees be paid by such landlord to the tenant. Under the circumstances, the application filed by the landlord against the tenant could not be dismissed summarily by the Rent Controller vide order dated March 23, 1984 and the view taken by the Appellate Authority in the Judgment under revision is maintained.

5. As regards the contention that the appeala against the order of the Rent Controller dated March 23, 1984, was not maintainable because the order of the Rent Controller could not be said to have been passed under S. 13 of the Act, I do not ffind any merit therein. Admittedly, the ejectment application was filed under S. 13 of the Act. As provided under sub-sec (2) to S. 13 of the Act, a landlord who seeks to evict his tenant shall apply to the controller for a direction in that behalf. If the said application is dismissed by the Rent Controller either on merits or on the ground that the same was not maintaable, then the order will be deemed to have beben passed on an application fifled under S. 14 of the Act. In the present case, the Rent Controller has disposed of the application under S. 13 of the Act, on the ground that the, same was not maintainable, As such, the said order was certainly appealable as it amopunted to the dsimissal of the application under S. 13 of the Act. Even if it may be assumed that the applicaion will be deemed to have been dismissed under theprovisions of S. 14 of the Act, even then, the order will be appealable as it was the application under S. 13 of the Act which was dismissed by the Rent Controller finally vide order dated March 23, 1984. the reasons for dismissing thesame may be any, but since it was finally disposed of after hearing both the parties, such an order fell within the ambit of S. 15(2) of the Act, and, therefore, was appealable. It is an order passed under the Act by the controller which has been made appealable by sub-section (2) of S. 15 of the Act.

6. As a result of the above discussion, this revision petition fails and is dismissed with no order as to costs.

7. Petition Dismissed.


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