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Kanta Goel Vs. B.P. Pathak - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal Nos. 654 of 1976 and Civil Miscellaneous Appeal Nos. of 1963, 2161 of 1976
Judge
Reported inILR1977Delhi485
ActsDelhi Rent Control Act, 1958 - Sections 14A, 14A(1) and 25B(8)
AppellantKanta Goel
RespondentB.P. Pathak
Advocates: R.M. Lal,; Mala Mohan,; Mala Narayan,;
Cases ReferredState of Kerala v. K. M. Cheria Abdulla and Company
Excerpt:
(i) delhi rent control act (1958) as amended - section 14a--whether eviction petition without impleading co-owners/co-landlords maintainable--expression 'owns either in his own name'--meaning of.; in the present case, the respondent-landlord sought eviction of the petitioner-tenant under section 14a of the delhi rent control act, on the ground that he is the sole landlord of the premises in dispute and in the alternative that he is the co-owner/co-landlord of the premises, and being in occupation of a government accommodation has been asked to vacate the government accommodation or else pay penal rent. the petition was opposed and leave to appear and defend was applied for by the petitioner tenant. the petitioner challenged the maintainability of the eviction petition on the grounds,.....yogeshwar dayal, j. (1) this is a petition for revision filed on behalf of the tenant, shrimati kanta goel, under proviso to subsection (8) of section 25b of the delhi rent control act, as amended, (hereinafter referred to as 'the act') against the order of the rent controller dated 16-9-1976 under section 14a(1) of the act rejecting the application of the petitioner for leave to contest the ejectment application filed by the respondent. as a sequiter, the rent controller, passed an order on the same day stating that since the petitioner's application for leave to contest ejectment application was rejected the respondent was entitled to a decree for eviction. the petitioner was asked to hand over vacant possession of the premises to the respondent within two months of the order.(2) the.....
Judgment:

Yogeshwar Dayal, J.

(1) This is a petition for revision filed on behalf of the tenant, Shrimati Kanta Goel, under proviso to subsection (8) of section 25B of the Delhi Rent Control Act, as amended, (hereinafter referred to as 'the Act') against the order of the Rent Controller dated 16-9-1976 under section 14A(1) of the Act rejecting the application of the petitioner for leave to contest the ejectment application filed by the respondent. As a sequiter, the Rent Controller, passed an order on the same day stating that since the petitioner's application for leave to contest ejectment application was rejected the respondent was entitled to a decree for eviction. The petitioner was asked to hand over vacant possession of the premises to the respondent within two months of the order.

(2) The eviction petition dated 3-2-1976 was filed by Shri B. P.Pathak (respondent) against Shrimati Kanta Goei (petitioner) purported to be under section 14A of the Act, as amended by the Delhi Rent Control Act (Amendment) Act, 1976. In this petition, the eviction of the petitioner was sought from the first floor of premises No. 23/6, Shakti Nagar, Delhi. The respondent had averred in the eviction application that he is the landlord of the premises in dispute, that the premises let out to the petitioner were residential. The description of the property was also given. Regarding the eviction from the first floor, it was averred that the landlord is in occupation of the Central Government's premises bearing No. 14-C, Havelock Square, Kali Bari Mandir Marg, New Delhi and has been ordered to vacate the said residential accommodation by 31st December, 1975 and that he has no other alternative suitable accommodation except the premises in dispute. It was also averred that he bona fide required the premises in question. It was further pleaded that a notice under section 106 of the Transfer of Property Act was duly given by registered post which was received by the petitioner to which she gave a vague reply.

(3) In the column relating to the name and address of the landlord, the respondent described himself as the sole landlord of the premises.

(4) It was also averred in the petition that the respondent is required to vacate the government premises immediately and that he is working as Under Secretary, Ministry of Works and Housing. It was also averred that the respondent has received rent up to 31st January, 1976 against proper receipt.

(5) Along with the petition, the respondent filed the plan of the premises in dispute. A copy of the order of the Government dated 24-1-1976 requiring the respondent to vacate the government residence allotted to him, by 31st December, 1975, failing which he will be charged market rent with effect from 1-1-1976 at the rates fixed by the Government from time to time, was also filed.

(6) The petitioner filed an application dated 24-2-1976 for permission to appear and contest the aforesaid eviction petition. The grounds on which the permission was sought are as under :

(I)that the tenancy premises had not been properly described and the site-plan filed with the petition is not in accordance with the premises in dispute at the spot and is wrong, and that the eviction petition does not relate to the entire premises;

(II)that the eviction petition is had as the respondent has nowhere pleaded that he owns the tenancy premises or that the house in question is either in his own name or in the name of his wife or the dependent child ;

(III)that the respondent does not own the house in question and the tenancy premises either in his own name or in the name of his wife or in the name of his dependent child;

(IV)that the house in dispute, including the tenancy premises in dispute, was owned by one Shri Saraswati Dass who ' died intestate in the year 1972. He is survived by his three sons, including the respondent. All the three sons & a daughter have become owners in common and landlords by operation of law. The respondent is not the exclusive owner of the property;

(V)that the tenancy premises were let out to the petitioner in the year 1968 by Shri Saraswati Dass and after his death all the children of Shri Saraswati Dass are owners/landlords of the premises in dispute. The respondent alone is not entitled to recover possession or to file eviction petition in his individual name. The other legal heirs are also necessary parties. The petition is defective due to non-joinder of parties and is not maintainable according to law;

(VI)that the contractual tenancy has not been validly terminated and the notice served upon the petitioner is defective and invalid;

(VII)hat since the premises were not let out by the respondent but by Shri Saraswati Dass, the respondent is not entitled to file eviction petition. Even after the death of Shri Saraswati Dass, the respondent has been Realizing the rents describing the property as belonging to the said Shri Saraswati Dass in his capacity as the son of Shri Saraswati Dass. No fresh tenancy has been created between the petitioner and the respondent;

(VIII)that the premises were initially taken by the petitioner for residential-cum-business office purposes and the same are being used as such since the inception of the tenancy;

(IX)that another house No. 18/5, Shakti Nagar, Delhi, was also owned by late Shri Saraswati Dass and after his death the said house is also owned by the legal heirs of the deceased, including the respondent. The said house is a big house and is available to the respondent for residence. The entire ground floor of the house in dispute was also alleged to be lying vacant and locked since long and it was also averred that the same is also presently available for residence of the respondent;

(X)that there is no order of the Government requiring the respondent to vacate the government allotted accommodation. Copy of the order filed on record is invalid, null and void and does not constitute a valid order. The same is not original order or a genuine document. Alternatively, it was submitted that no original order has been issued by the Government to the respondent. The respondent seems to have procured the same from the Ministry wrongly as he is working in the Ministry of Works and Housing;

(XI)that the house-tax of the premises in suit is being assessed in the name of Shri Saraswati Dass. There is no mutation in the name of the respondent nor the respondent has ever notified his ownership or the mode of acquiring the same to the petitioner. The respondent is not the exclusive owner of house No. 23/6, Shakti Nagar.

(7) This application for leave to defend was filed on 24-2-1976 supported by an affidavit of the petitioner.

(8) A reply to this application was filed on behalf of the respondent. The objections raised by the petitioner were denied. It was averred that the site-plan filed is correct. The documents regarding ownership were also filed with the reply. It was pleaded that the other brothers have nothing to do with the first floor of the premises in dispute and the respondent is the exclusive owner of the premises in dispule. It was further averred that after the death of late Shri Saraswati Dass, a document was shown to the petitioner and by operation of law as well as by admitting the respondent as the landlord and owner, the petitioner is a tenant of the respondent. It was further averred that the petitioner is paying rents up to-date and rent receipts duly executed and signed by her in the name of the respondent are being issued since long. The rent receipts were also filed showing the ownership as well as the respondent being the landlord. It was denied that the premises were let out for business-cum-residence and it was averred that the premises were let out only for residence and arc being used only for residence.

(9) Regarding house No. 18/5, Shakti Nagar, Delhi, it was pleaded that the respondent has got nothing to do with that house as he was made the owner of the first floor of premises No. 23/6, Shakti Nagar (premises in dispute) only by his late father Shri Saraswati Dass. Documents in this regard are also filed. It was pleaded that the respondent has got nothing to do with the ground floor of the premises in dispute as it stood in the name of his elder brother who is the exclusive owner of the ground floor. It was further pleaded that the premises stood mutated in the name of the respondent only and it was further pleaded that the petitioner has got alternative accommodation viz. house No. 27[B-13, New Rohtak Road, Delhi available with her whereas the respondent requires for bona fide purposes the premises in question for himself and for his family as there is no other suitable alternative accommodation available with him.

(10) While the application for leave to contest the eviction application was pending, the respondent in order to cut short the controversy regarding the extent of the premises which are the subject- matter of the petition and about his ownership, filed an application to amend the eviction petition vide application dated 21-4-1976. By this application the respondent sought to amend para 8 of the petition and filed another plan showing correctly the premises in occupation of the petitioner. The amended para was also reproduced in this application. I need not advert to any further facts as there was no dispute as to the extent of the premises, before the trial court.

(11) Another amendment was also applied for in para 18(a) of the petition where it was stated that by inadvertence, in para 18 of the petition, it was not mentioned that the respondent is the owner of the premises in dispute and the manner in which he became owner of the premises in dispute. The amendment sought in this paragraph is as under :

'THE petitioner is the owner of the premises in dispute. The premises in dispute were previously owned by the father of the petitioner Shri Saraswati Dass who died on 29-2-1972 leaving behind the Will dated 18th Sept. 1969 as modified by the Will dated 9th September, 1971. By virtue of the aforesaid Wills the petitioner and his brother Shri Ram Prasad Pathak (R. P. Pathak) became the owners of the property bearing ^o. 23/6, Shakti Nagar, Delhi. After the death of the father of the two brothers i.e. the petitioner and Shri Ram Prasad Pathak made an oral partition whereby the petitioner was to enjoy as exclusive owner of the room on the mezzanine floor and the entire first floor and the roof thereon, whereas the other brother Shri Ram Prasad Pathak was to enjoy as exclusive owner the entire ground floor of 23/6, Shakti Nagar, Delhi. In pursuance of the said oral partition the petitioner has been Realizing rent from the respondent right from the date of the death of Shri Saraswati Dass the father of the petitioner. Initially the receipts were issued in the name of late Shri Saraswati Dass as owner 'under some mistake but later on the receipts were issued exclusively in the name of the petitioner. The petitioner is thus the owner of the premises in dispute. The petitioner is bound to vacate the aforesaid accommodation allotted to him by the Government and on account of his failure to vacate the said premises he has become liable to pay penal rent.'

(12) The application for amendment was contested by the petitioner but the trial court by order dated 26th May, 1976 allowed the amendment on payment of Rs 20.00 as costs. The amended petition was directed to be filed on 2-6-1976. The costs were accepted by the petitioner by order dated 2-6-1976 and the amended petition was also filed on 2-6-1976.

(13) Along with the application for amendment, the respondent filed the amended petition dated 21-4-1976. Before filing the amended petition, the respondent placed on record the bank memos and the original cheques dated 7-3-1974 and 17-12-1973 showing payment of Rs. 300.00 by each cheque to the respondent only. The respondent also filed on record an attested copy of a certificate dated 24-1-1976 from the Government of India. Directorate of Estates, certifying that the respondent is in occupation of 14-C, Havelock Square and since it is reported that he owns residential house in his own name on the first floor of 23/6, Shakti Nagar. Delhi, the respondent in pursuance of the Ministry's order dated 9-9-1975. is required to vacate the government residential premises by 31-12-1975, failing which the respondent is liable to pay market rent at the rate fixed by the Government from time to time. The respondent also filed an attested copy of an agreement dated 15-3-1972 between the respondent Bhagwat Prashad Pathak and his elder brother Shri Ram Pershad Pathak purporting to be an agreement but in fact a deed of partition of house No. 23/6, Shakti Nagar, Delhi, giving first floor to the respondent and the ground floor to his brother Ram Pershad Pathak.

(14) The respondent also placed on record an attested true copy of a bill for Rs. 325.00 per month for the government premises in his occupation since 1-1-1976 to 31-1-1976. The respondent also placed on record three photo-stat copies of rent receipts for receipt of rent, issued by the petitioner in the name of the respondent exclusively as the landlord for the period 1-11-1975 to 30-11-1975. 1-12-1975 to 31-12-1975 and 1-1-1976 to 31-1-1976.

(15) The respondent also filed an attested copy of will dated 18th September, 1969 as well as of 9th September, 1971 amending the first will executed by his father in favor of his children whereby the house in dispute No. 23/6, Shakti Nagar, Delhi, was bequeathed by their father to Shri Ram Pershad Pathak and the respondent Shri Bhagwat Pershad Pathak.

(16) After the filing of the amended application, the petitioner filed a further affidavit dated 5-7-1976 in which the petitioner took the following picas :

(I)that the respondent is not the owner and is not entitled to file the eviction petition;

(II)that the plea that the respondent became owner by virtue of the will is wrong and denied. There is no valid will in favor of the respondent in respect of the premises in dispute;

(III)that the respondent has falsely and mala fide pleaded that there has been oral partition among his brothers. There has been no partition oral or otherwise. Even the documents by the respondent on record do not show any oral partition;

(IV)that even as per letter dated 12-2-1976 the mutation of the premises in dispute has been effected in the joint names of the respondent and his brother as is evident from the letter of the Municipal Corporation filed by the respondent himself;

(V)that after the death of Shri Saraswati Dass. the original landlord and owner of the premises, the rent receipts have been issued to the respondent (petitioner) in the name of late Shri Saraswati Dass by the respondent himself and he has collected the rent from the petitioner being one of the sons of the deceased, Shri Saraswati Dass;

(VI)that it was also denied that the rent receipts were issued in the name of the respondent as owner and have been given to the petitioner. It was submitted that the petitioner did not know English and the respondent might have played some fraud in taking signatures of the petitioner on any receipt. However, she has not admitted the respondent as the owner/landlord and that she did not sign any receipt in the name of the respondent.

(VII)It was also denied that the respondent has been Realizing' rents from the petitioner in his own name as being the owner himself.

(17) After the filing of this additional affidavit on behalf of the petitioner, the respondent Shri B. P. Pathak filed a reply dated 26-7-1976. In this affidavit the respondent again re-affirmed that he is the owner of the premises in dispute and that he is entitled to file the eviction petition. It was further submitted that the building in which the premises in dispute is situate as a part thereof, was owned by late Shri Saraswati Dass who died on 29-2-1972. The late Shri Saraswati Dass executed a will dated 18-9-1969 as modified by the will dated 9-9-1971. By virtue of the aforesaid wills, Shri B. P. Pathak (respondent) and his brother Shri Ram Pershad Pathak became owners of the property No. 23/6, Shakti Nagar, Delhi in equal shares. After the death of the father, the two brothers viz. the respondent and Shri Ram Pershad Pathak made an oral partition whereby the respondent was to enjoy exclusive ownership of the room on the mezzanine floor and the entire first floor and the roof thereon whereas the other brother Shri Ram Pershad Pathak was to enjoy as exclusive owner of the entire ground floor of the said building. In pursuance of the said partition, the respondent alone has been Realizing rent from the petitioner after the death of his father and all the receipts were issued and signed by the respondent. For sometime, the receipts were issued by the respondent in the name of late Shri Saraswati Dass by mistake as he did not know its implications. Later, the receipts were issued in his own name and the counter-foils of the receipts were duly signed by the petitioner. It was thus pleaded that he was the exclusive owner of the premises in dispute and was the landlord of the said premises. It was reiterated that the father of the respondent executed the aforesaid wills and they are valid and the petitioner is merely a tenant and has got no locus standi to challenge the wills. The said wills were acted upon by all the heirs of the deceased Shri Saraswati Dass and were never challenged by the heirs of the deceased. The case of partition between the brothers was re-affirmed. It was deposed in the affidavit that there has been such a partition and the tact of partition is also borne out by circumstances inasmuch as the respondent has all along been dealing with the petitioner, who has been Realizing the rent from the petitioner and has been issuing rent receipts to her signed by the respondent alone. It is also pleaded that the agreement between the respondent and his brother has not been drafted by some legal mind as there was no dispute between the brothers. They actually wrote on a paper what was really agreed orally between them just for the sake of record. The fact remains that there has been a partition just after the death of Shri Saraswati Dass and the partition was acted upon, and that the respondent and his brother Rani Pershad Pathak have been dealing with the property which fell to their respective shares, as exclusive owners. The Corporation has mutated the name of the two brothers jointly as they treat the building for purposes of property tax as one and does not allow bifurcation of the building for purposes of property-tax. It was pleaded that the petitioner had no defense to plead and her application for leave to contest the eviction petition should be dismissed.

(18) As stated earlier, the Rent Controller dismissed the application of the petitioner for leave to contest the eviction petition and ordered the eviction of the petitioner.

(19) The Rent Controller, inter alia, held :

(I)that the respondent is Under Secretary in the Ministry of Works and Housing and is in occupation of Quarter No. 14-C, Havelock Square and was required to vacate that government allotted accommodation by 31st December, 1975 failing which market rate of Rs. 562.00 p.m. was to be charged from him. (Copy of that order dated 24-1-1976 was also filed by him) ;

(II)that the respondent is the owner of the premises which he has inherited from his father and on the basis of the agreement and the subsequent partition between the two brothers the respondent is the exclusive owner of the premises in dispute in his own name;

(III)that the petitioner has been paying rent to the respondent as sole landlord and though for sometime the respondent had been issuing rent receipts in the name of his deceased father yet later on he started issuing rent receipts in his own name:

(IV)that the respondent without any difficulty, could effect oral partition with his brother. However, if it was through a written instrument, it should have been written and registered.

(V)As regards mutation by the M.C.D. it will hardly matter as the M.C.D. does not effect mutation in the name of different owners if the building is one complete unit. It effected mutation in the joint names so that it could realise house-tax from either of them if they commit default in doing so;

(VI)The respondent is the exclusive owner of the portion in occupation of the petitioner. Even if he is not, for the sake of argument, a co-owner of the premises can very well maintain the present petition under section 14A of the Act;

(VII)the plea of the tenant that the premises was let out for residential-cum-business is frivolous as it is not shown which kind of business was being run by the petitioner. It is being used as residence from the very beginning;

(VIII)the notice was served but service of notice is not necessary in view of the decision of Deshpande, J. in C. R. 280 of 1976, 0m Prakash v. Ram Nath etc. decided on 3-8-1976; (1).

(20) It is against these findings that the petitioner has come up in revision to this Court under proviso to Section 25B(8) of the Act.

(21) It will be noticed from the findings reproduced above that the Rent Controller proceeded on alternative basis. He found as a fact that the respondent is the exclusive owner of the first floor on the basis of the will and the oral partition or that even if the respondent is not the exclusive owner and is only one of the joint owners along with the other co-owners yet the respondent was entitled to maintain the eviction petition under section 14A of the Act.

(22) Shri R. M. Lal, who appeared on behalf of the petitioner, made a submission that the plea raised by the petitioner raised triable issues and, thereforee, the Rent Controller did not act according to law in refusing to grant leave to contest the eviction petition. He submitted that section 14A could be availed of by a landlord who was the exclusive owner of the property either in his own name or in the name of his wife or dependent child. It was submitted that if the property is joint family property or if it is owned jointly as co-owners, the petition under section 14A was not maintainable. It was also contended by the learned counsel that since the application of the petitioner raised triable issues inasmuch as in view of the denial of the petitioner, the respondent was bound to prove by leading evidence about his exclusive ownership and sole landlordship, the leave to defend ought to have been granted.

(23) It may be stated at the outset that if it be held that the respondent had to prove his exclusive ownership and or exclusive land-' lordship in order to maintain the petition under section 14A, it may have been a case where leave to defend ought to have been granted as the respondent-landlord would have been duty-bound in view of the affidavit of the petitioner denying exclusive landlordship and ownership, to prove the same by producing evidence.

(24) However, before this Court, learned counsel appearing for the respondent sought to justify the order of the trial court on the alternative ground that a petition by one of the landlord, who is employed as contemplated by section 14A of the Act and against whom such an order as contemplated by Section 14A is passed, is entitled to maintain the petition under section 14A.

(25) This at once raises a question as to the meaning and scope of section 14A of the Act. The relevant part of Section 14A(1), after leaving the proviso, is as under :

'14A.(1) Where a landlord who, being a person in occupation of any residential premises allotted to him by the Central Government or any local authority is required, by, or in pursuance of, any general or special order made by that Government or authority, to vacate such residential accommodation, or in default, to incur certain obligations, on the ground that he owns, in the Union territory of Delhi, a residential accommodation either in his own name or in the name of his wife or dependent child, there shall accrue, on and from the date of such order, to such landlord, notwithstanding anything contained elsewhere in this Act or in any other law for the time being in force or in any contract (whether express or implied), custom or usage to the contrary, a right to recover immediately possession of any premises let out by him............'

If section 14A(1) is analysed, it will be noticed that it gives a right to landlord to seek eviction of his tenant provided the landlord satisfies the following conditions :

(A)being a person in occupation of any residential premises allotted to him by the Central Government or any local authority is required, by, or in pursuance, of any general or special order made by that Government or authority, to vacate such residential accommodation, or in default, to incur certain obligations ;

(B)such an order has been passed by the Central Government or any local authority against the landlord who is in such occupation on the ground that he owns a residential accommodation either in his own name or in the name of his wife or dependent child, in the Union territory of Delhi.

There can be no doubt that such an order has been passed by the Central Government against the respondent-landlord.

(26) Strictly speaking, once such an order is produced before the Rent Controller in proceedings under section , by a landlord, it is not within the jurisdiction of the Rent Controller to go into its correctness or otherwise.

(27) It can go into the question of its genuineness only i.e. whether it is a fake order or not but not its validity. The reason is obvious. The reason being that Rent Controller is a court of limited jurisdiction. The Rent Controller does not sit as a court of appeal to question its validity.

(28) However, learned counsel for the petitioner argued that it is within the province of the Rent Controller and consequently of this Court to go into the validity of such an order where the premises in dispute are not owned by the landlord either in his own name or in the name of his wife or the dependent child. It is urged that the expression 'that he owns. ............ .either in his own name' does not include properties which are owned by such landlord as contemplated by section 14A jointly with his brothers or sisters.

(29) Even, for the sake of argument, if it is assumed that the Rent Controller and consequently this Court had the jurisdiction to go into the question whether such a landlord 'owns either in his own name' a residential accommodation, I am of the opinion that it includes properties which are owned by such landlord jointly or in common with others. The expression 'that he owns in his own name' has been used in this section merely by way of distinguishing 'benami' ownership i.e. property owned by the landlord but in a name different from the name of his wife or the name of the child, or any other person.

(30) Where a property is left by a father intestate, it is inherited by all the children and so long as there is no partition it cannot be said that any of the co-owners do not own the property in their own name.

(31) The next question which arises is whether one of such joint owners/landlords can maintain a petition under section 14A of the Act or not. A similar provision is found in proviso (e) to Section 14A(1) of the Act which provides as under.

'(E)that the premises let for residential purposes are required bona fide by the landlord for occupation as a residence' for himself or for any member of his family dependent on him, if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable residential accommodation'.

The Supreme Court, while dealing with a provision similar to proviso (e), in Section 13(l)(f) of West Bengal Premises Tenancy Act, 1956, held that a co-owner is as much an owner of the entire property as any sole owner of the property is-(see Sri Ram Pasricha v. Jagannath and others. : [1977]1SCR395 and one such owner, if it satisfies the other conditions of section 13(l)(f), could sue for eviction. I feel the same reasoning is applicable to the present section 14A.

(32) The respondent was, in any case, admittedly one of the joint landlords/owners. The petition was thus maintainable.

(33) The only question which remains is whether the petition could be filed without impleading the other alleged co-owners/landlords. The learned counsel for the respondent in order to thwart any delay in the disposal of the petition and in order to meet the objection about not impleading the other co-owners/landlords, filed C. M. 1963/76 under Order I rule 10 read with order 6 rule 17 and Section 151 of the Code of Civil Procedure for amendment of the ejectment application by impleading the other alleged co-owners/landords, namely, Shri Baini Prasad Pathak, Shri Ram Prasad Pathak and Shrimati Promila Dutt Sharma as defendants in the said eviction petition, along with the amended petition. Another application was filed on behalf of Shri Baini Prasad Pathak Shri Ram Prasad Pathak and Shrimati Promila Dutt Sharma, the alleged brothers and sister of the respondent and the alleged co-owners and co-landlords under order I rule 10(2) and Section 151 Civil Procedure Code . for being imp leaded as parties to the revision petition.

(34) Learned counsel for the petitioner, however, opposed the applications for amendment and addition of parties. It was urged by the learned counsel that this Court has no power in revision under proviso to sub-section (8) of Section 25B to allow the amendment applications. Sub-section (8) of Section 25B reads as under :

'(8)No appeal or second appeal shall lie against an order for the recovery of possession of any premises made by the Controller in accordance with the procedure specified in this section: Provided that the High Court may, for the purpose of satisfying itself that an order made by the Controller under this section is according to law, call for the records of the case and pass such order in respect thereto as it thinks fit.'

(35) It will be noticed that appeals against the orders of the Rent Controller for recovery of possession of any premises under section 14A are barred but the remedy provided to the aggrieved party is by way of revision. The revision is in essence a continuation of the proceedings before the Rent Controller. The jurisdiction of the High Court, however, is limited. The proviso to the sub-section conferring power on the High Court is similar to the provisions of section 35 of the Delhi and Ajmer Rent (Control) Act (38 of 1952) and the scope of this provision came up for consideration before the Supreme Court in Hari Shankar and others v. Rao Girdhari Lal Chowdhury: A.I.R. 1963 S C 698 and the Supreme Court held :

'THE phrase 'according to law' in S. 35 of the Delhi and Ajmer Rent Control Act refers to the decision as a whole, and is not to be equated to errors of law or of fact simpliciter. It refers to the overall decision which must be according to law which it would not be, if there is a miscarriage of justice due to a mistake of law. S. 35 is thus framed to confer larger powers than the power to correct error of jurisdiction to which S. 115 is limited. But the section-in spite of its apparent width of language where it confers a power on the High Court to pass such order as the High Court might think fit,-is controlled by the opening words, where it says that the High Court may send for the record of the case to satisfy itself that the decision is 'according to law'. It stands to reason that if it was considered necessary that there should be a rehearing a right of appeal would be a more appropriate remedy, but the Act says that there is to be no further appeal. Under S. 35 High Court cannot interfere with a plain finding of fact arrived at by the Court below. It cannot re-assess the value of evidence and substitute its conclusions of fact in place of those reached by the Court below.'

Distinguishing the powers in such a revision from the powers of an appellate court or revision under section 115 Civil Procedure Code . the Supreme Court observed as under in the afore-cited case :

'THE distinction between an appeal and a revision is a real one. A right of appeal carries with it a right of rehearing on law as well as fact, unless the statute conferring the right of appeal limits' the rehearing in some way, as has been done in second appeals arising under the Code of Civil Procedure. The power to hear a revision is generally given to a superior Court so that it may satisfy itself that a particular case has been decided according to law. Under S. 115 of the Civil P.C. the High Court's powers are limited to see whether in a case decided, there has been an assumption of jurisdiction where none existed, or a refusal of jurisdiction where it did, or there has been material irregularity or illegality in the exercise of that jurisdiction. The right there is confined to jurisdiction and jurisdiction alone. In other Acts, the power is not so limited, and the High Court is enabled to call for the record of a case to satisfy itself that the decision therein is according to law and to pass such orders in relation to the case, as it thinks fit.'

It will thus be noticed that the High Court has to consider while hearing a revision whether overall decision is in accordance with law or not. Once the court comes to the conclusion that the overall decision is not in accordance with law it has got the further power to 'pass such order in respect thereto as it thinks fit'.

(36) I would first take up the question whether the overall decision of the Rent Controller was in accordance with law or not. The basic objection which survives for seeing whether the decision of the Rent Controller was in accordance with law or not is whether the ejectment application was maintainable by such a landlord as in the present case without impleading the other co-landlords/owners. Reliance was placed by the learned counsel for the petitioner on the decision of B.C. Misra, J. in Holkar Mall v. Munshi Lall : 1975 R C R 540 where it was held as under :

'......If there are a number of landlords and the suit for the ejectment is to be filed against the tenant, the proposition of law is that all of them must join in the suit and in absence of any of them a suit for eviction against a tenant will not be maintainable. 'The second proposition is that of more than one plaintiff institutes the suit, there must be a community of interest and unity of action on their part otherwise the trial may be embarrassing. The third proposition is that if for any reason, one or more of the landlords do not join the plaintiff in instituting the 'suit, such remaining landlords must be arrayed as defendants. A suit thus constituted with all the parties arrayed either as plaintiffs or defendants will be properly constituted suit and cannot be said to be suffering from any defect and cannot be thrown out for lack of necessary parties. The determination of any rights between the plaintiff landlords and the defendant landlord would depend upon the facts and circumstances and the issues in each case, but the same has nothing to do with the maintainability of the suit. The three principles of law enunciated above, in my opinion apply with equal force to a petition for eviction under the rent Act.'

It is in view of this objection that learned counsel for the respondents as well the three other alleged co-landlords/owners filed the aforesaid application. It will be noticed that before the Rent Controller the case proceeded on the basis that the respondent was the exclusive landlord/owner though the Rent Controller accepted the alternative case of the landlord, as stated above but no opportunity was given to the landlord to implead the other co-landlords/owners while accepting the alternative case of the respondent-landlord. There is no law of limitation for filing a petition for ejectment under section 14A and, thereforee, no vested rights have been acquired by the tenant. If the other co-owners/landlords are added as parties to the present revision petition as respondents, under the inherent powers of this Court under Section 151 Civil Procedure Code .,no injustice is caused to the tenant-petitioner.

(37) In Kanakarathanammal v. V. S. Loqanatha Mudaliar and another : [1964]6SCR1 , the Supreme Court while dealing with an appeal by an unsuccessful plaintiff regarding addition of parties observed as under at pages 11,12 and 13 of the report :

'THIS appeal was argued before us on the 22nd August, 1963. At the said hearing, we had suggested to the parties to consider whether they could amicably settle the dispute between themselves. Accordingly, we allowed the matter to stand over to enable the parties to negotiate the settlement, if possible. Ultimately, on the 13th September, 1963, the Appellant's counsel reported to the office that no settlement was possible. However, in the meanwhile, on the 6th September, 1963, the appellant's counsel filed an application for leave to add the appellant's two brothers, T. Narayanaswamy and T. Vasudevan as co-plaintiffs to the plaint, or if they are not willing to join as coplaintiffs, then as defendants 4 and 5. This application is opposed by respondents I and 2. That is how this appeal was placed before the same Bench once again on the 13th December, 1963. We do not think there is any justification for allowing the appellant to amend her plaint by adding her brothers at this late stage. We have already noticed that the plea of non-joinder had been expressly taken by respondents 1 and 2 in the trial Court and a clear and specific issue had been framed in respect of this contention. While the suit was being tried, the appellant might have applied to the trial Court to add her brothers, but no such application was made. Even after the suit was dismissed by the trial Court on this ground, it does not appear that the appellant moved the High Court and prayed that she should be allowed to join her brothers even at the appellate stage, and so, the High Court had no occasion to consider the said point. The fact that the High Court came to the contrary conclusion on the question of title does not matter, because if the appellant wanted to cure the infirmity in her plaint, she should have presented an application in that behalf at the hearing of the appeal itself. In fact, no such application was made even to this Court until the appeal was allowed to stand over after it was heard. Under the circumstances, we do not think it would be possible for us to entertain the said application. In the result, the application for amendment is rejected. It is unfortunate that the appellant's claim has to be rejected on the ground that she failed to implead her two brothers to her suit, though on the merits we have found that the property claimed by her in her present suit belonged to her mother and she is one of the three heirs on whom the said property devolves by succession under s. 12 of the Act. That, in fact, is the conclusion which the trial Court had reached and yet no action was taken by the appellant to bring the necessary parties on the record. It is true that under O.1 r. 9 of the Code of Civil Procedure no suit shall be defeated by reason of the misguide or non-joinder of parties; but there can be no doubt that if the parties who are not joined are not only proper but also necessary parties to it, the infirmity in the suit is bound to be fatal. Even in such cases, the Court can under O.I r. 10, sub-rule 2 direct the necessary parties to be joined, but all this can and should be done at the stage of trial and that too without prejudice to the said parties' plea of limitation. Once it is held that the appellant's two brothers are co-heirs with her in respect of the properties left intestate by their mother, the present suit filed by the appellant partakes of the character of a suit for partition, and in such a suit clearly the appellant alone would not be entitled to claim any relief against the respondents. The estate can be represented only when all the three heirs are before the Court. If the appellant persisted in proceeding with the suit on the basis that she was exclusively entitled to the suit property, she took the risk and it is now too late to allow her to rectify the mistake. In Naba Kumar Hazra & Anr. v. Radheshyam Mahish & Ors. the Privy Council had to deal with a similar situation. In the suit from which that appeal arose, the plaintiff had failed to implead co-mortgagors and persisted in not joining them despite the picas taken by the defendants that the co-mortgagors were necessary parties and in the end, it was urged on his behalf that the said co-mortgagors should be allowed to be imp leaded before the Privy Council. In support of this plea, reliance was placed on the provisions of O.I r. 9 of the Code. In rejecting the said prayer. Sir George Lowndes, who spoke for the Board observed -that 'they are unable to hold that the said Rule has any application to an appeal before the Board in a case where the defect has been brought to the notice of the parly concerned from the very outset of the proceedings and he has had ample opportunity of remedying it in India.'

(38) A question arose regarding addition of parties, for the first time in appeal before Venkataswami, J. in Iramma and others v. Chandamma and another : AIR1976Kant62 and the learned Judge sitting in revision against the order of the lower appellate court declining to implead certain necessary party in appeal for the first time, accepted the application filed before the appellate court and accepted the revision petition. I am citing this case only as an instance where parties have been added in appeal by exercising revisional jurisdiction under section 115 of the Code of Civil Procedure.

(39) The applicants, Baini Pershad Pathak, Ram Pershad Pathak and Shrimati Promila Dutt Sharma, brothers and sis'ers of the respondent are directed to be added as respondent to the revision petition, in exercise of inherent powers of this Court.

(40) After having added the brothers and sisters as respondents to the petition, the next question which arises is whether this Court, in exercise of the powers as conferred by the later part of the proviso to sub-section (8) of section 25B, namely, 'and pass such orders in respect thereto as, it thinks fit' could allow the amendment of the main ejectment application by adding these brothers and sisters as respondents the said ejectment application.

(41) In fact, it does not lie in the mouth of the petitioner to object the amendment of the petition as it was her own objection that the other landlord/owners have to be joined. The only question whether amendment should be allowed at this stage or not remains to be decided. As stated earlier, there is no injustice to the petitioner being caused as no vested rights are being taken away and in case the amendment is allowed, it will prevent multiplicity of proceedings as the respondent may have to file a fresh petition.

(42) Learned counsel for the petitioner, however, submitted that powers of this court to add parties in exercise of revisional jurisdiction are controlled by the expression 'pass such order in respect thereto as it thinks' occurring in proviso to sub-section (8) of Section 25B of the Act. In support of his submission, learned counsel relied upon the authority of the Supreme Court in Hari Shankar and others v. Rao Girdhari Lal Chowdhury: A.I.R. 1963 S.C. 698 (supra) as well as Spkhya Baba Lataka v.Sadashiv Parsharam Sathe : A.I.R. 1930 Bom361, (7) Chiranji Lal v. Kali : A.I.R. 1922 Oudh 130, Mohamed Akhtar Hussain v. Chamni Mistry : A.I.R. 1937 Pat 524, K. S. Duraiswami Nadar v. Sivanupandia Nadar : A.I.R. 1944 Mad 181 and Bobba Satyanarayana v. Maddineni Sree Rumulu : AIR1961AP461

(43) There is no quarrel with the observations of the learned Judges in the afore-cited cases as to the scope of the revision and I am in respectful agreement with them that the power of revision under the aforesaid proviso cannot be used by an unsuccessful party to raise a new point or to call for review of evidence.

(44) The present revision petition is by the tenant against the order for eviction passed in favor of the landlord. This Court, in exercise of revisional jurisdiction, having sent for the records on the petition of the tenant, and after examining the record, noticing of that the decision would be not in accordance with law if the other landlords are not made parties to the ejectment application, has to consider whether amendment of the main ejectment application can be allowed or not by addition of other co-landlords as respondents to this ejectment application by itself or remand the petition after directing the amendment by addition of parties and then call for fresh decision by the Rent Controller.

(45) The learned counsel for the tenant petitioner referred to a decision of the House of Lords in Franklin and others v. Minister of Town and Country Planning : 1948 Appeal Cases 87 (12), and then particularly relied on the meaning of the expression 'with respect thereto' as used in para 3 of Sch. I to the New Towns Act, 1946, in the following observations :

'THE terms of para 3 of Sch. I to the Act of 1946, may conveniently be recalled : 'If any objection is duly made to the proposed order and is not withdrawn the Minister shall, before making the order, cause a public local inquiry to be held with respect thereto, and shall consider the report of the person by whom the inquiry was held'. It has been held in both courts below that the words 'with respect thereto' mean 'with respect to the objections', and the appellants did not challenge that construction in this House'.

In this case, the expression was not 'pass such order in respect thereto as it thinks fit' but the words were 'If any objection is duly made ..............................cause a public local inquiry to be held with respect thereto' which limited the inquiry to the objection so made.

(46) The words of the section, in the present case, giving revisional jurisdiction to the Court show that once the Court finds that the decision is not in accordance with law after it calls for the records, the further power to 'pass such order in respect thereto as it thinks fit' refer to the records of the case. It docs not mean that this Court, after having found that the order of the Rent Controller is not in accordance with law, has merely to set aside it, accepting the revision, and dismiss the eviction application. The words are wide enough to pass whatever orders are necessary, in the interest of justice. The jurisdiction to revise the order or proceeding of a subordinate court has to be exercised for purposes of rectifying any illegality in the proceedings if the interest of justice requires. It is true that the revising authority may only call for the record of the proceedings and the record alone may be scrutinised for ascertaining the legality or propriety of an order or regularity of the proceedings but there is nothing in the provision relating to the revisional jurisdiction that for passing an order in exercise of revisional jurisdiction, if the revising authority is satisfied that the subordinate court has committed an illegality in the order, the revisional authority should not itself make or direct any further inquiry. The words 'and pass such order in respect thereto as it thinks.. fit' mean such order as may, in the circumstances of the case, is called for, for rectifying the error of law as may be regarded by the revisional authority as just. The power to pass such order as the revising authority thinks fit may in some cases include power to make or direct such further inquiry as the revisional authority may find necessary for rectifying the illegality. It is, thereforee, not right to broadly propound that in passing an order in exercise of revisional jurisdiction this Court must in all cases be restricted to the record maintained by the Rent Controller and can never make inquiry outside the record. The expression 'may pass such order with respect thereto as it thinks fit' came up for consideration before the Supreme Court in the State of Kerala v. K. M. Cheria Abdulla and Company (1965) 16 S.T.C. 875 and their Lordships of the Supreme Court gave the aforesaid interpretation to the said expression while interpreting section 12(2) of the Madras General Sales Tax Act, 1939.

(47) It is true that the scope of revision for interference is different under proviso to sub-section (8) of section 25B of the Act, from the provisions of Section 12(2) of the Madras General Sales Tax Act, 1939, but as the power of interference at the instance of a petitioner is .limited to considering the overall decision being not 'according to law' once a case is made out within the meaning of expression that an order made by the Controller is not according to law, the further power to 'pass such order in respect thereto as it thinks fit' is equally wide enough as contemplated by Section 12(2) of the Madras General Sales Tax Act, 1939.

(48) I am, thereforee, of the considered view that having found that the decision of the Controller was not according to law without impleading co-landlords/co-owners in the present petition under Section 14A of the Act, this Court in exercise of revisional jurisdiction under the aforesaid proviso to sub-section (8) of Section 25B, read with Order I rule 10(2) & Sec. 151 Civil Procedure Code . has ample powers to itself order the amendment of the ejectment application and add the three co- owners/landlords as respondents to the ejectment application. It is ordered accordingly.

(49) The next question which arises is whether the matter should be remanded back. No other question arises in the ejectment application once the other landlords/owners are added as respondents, nor was any other question argued. The case, thereforee, need not be remanded.

(50) Since the order of the learned Rent Controller dated 16-9-1976 has been found by me as not being in accordance with law, the order of the Rent Controller dated 16-9-1976 is set aside; but since I have allowed the amendment of the application for ejectment by addition of the other co-owners/landlords as respondents to the ejectment application, there is no ground left to grant the petitioner the leave to contest the ejectment application as amended and I consequently dismiss the application of the petitioner for leave to contest the eviction petition and pass a fresh order for eviction of the petitioner from the premises in dispute under section 14A(1) of the Act in favor of the respondent B. P. Pathak. The petitioner will, however, have two months time to vacate the premises from the date of this order.

(51) The revision petition is disposed of accordingly.

(52) Having regard to the aforesaid circumstances of the case, the parties arc left to bear their own costs.


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