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Pritam Singh Vs. Suraj Pershad - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 257 of 1967
Judge
Reported in3(1967)DLT704
ActsCode of Civil Procedure (CPC), 1908 - Order 6, Rule 17 - Order 41, Rule 2; Delhi Rent Control Act, 1958; Transfer of Property Act, 1882 - Sections 106A
AppellantPritam Singh
RespondentSuraj Pershad
Advocates: P.C. Softer and; M.L. Sharma, Advs
Cases ReferredMangilal v. Sugan Chand
Excerpt:
- - but their lordships have no hesitation in holding that the course ought nto, in any case, to be followed, unless the court is satisfied that the evidence upon which they are asked to decide establishes beyond doubt that the facts, if fully investigated, would have supported the new plea. they are satisfied that he ought nto to be allowed to do so it his alreedy been pointed out that the circumscances in which the appellant's petition founding these proceedings was launched are by no means clear. wrigley lord radcliffe deliverirg judgmnet of the privy council obseryed as follows -thoseconsiderations do indeed prevent a strong argument for the beard to retrues to entertain an appeal which has this issue as its only ground. but they think' it 'well to' add a reminder that the course.....i.d. dua, c.j. (1) this second appeal has been preferred under section 39 of the delhi rent control act, 195s (hereinafter called the act) from the order of the rent control tribunal dated 24th july, 1967 dismissing the appellant's appeal and affirming the order of the first additional rent controller dated 23rd september, 1966 holding that the landlord bonafide required the premises in question for occupation as residence for himself and for his family members dependent upon him and that he was nto in possession of reasonably suitable accommodation and on his finding, making an order of eviction against the tenant with a direction to vacate the premises within six months from the date of the order. buth the rent controller and the rent control tribunal left the parties to bear their own.....
Judgment:

I.D. Dua, C.J.

(1) This second appeal has been preferred under section 39 of the Delhi Rent Control Act, 195S (hereinafter called the Act) from the order of the Rent Control Tribunal dated 24th July, 1967 dismissing the appellant's appeal and affirming the order of the First Additional Rent Controller dated 23rd September, 1966 holding that the landlord bonafide required the premises in question for occupation as residence for himself and for his family members dependent upon him and that he was nto in possession of reasonably suitable accommodation and on his finding, making an order of eviction against the tenant with a direction to vacate the premises Within six months from the date of the order. buth the Rent Controller and the Rent Control Tribunal left the parties to bear their own costs.

(2) On second appeal, which would nto lie under the statute unless it involved some substantial question of law, the learned counsel for the appellant has, at the very outset, pressed his application under Order 6, Rule 17' and section 151, Code of Civil Procedure, read with Rule 2S-of the Rules framed under the Act, praying for amendment of his reply to the application for eviction presented before the Rent Controller and also for amendment of the grounds of appeal in this Court. The amendment sought in the reply before the Rent Controller read as under:-

'18.(b) That the applicant was. bound in law to terminate the tenancy of the respondent through a valid ntoice before filing the application for ejectment. The application deserves to be dismissed as the Rent Controller has no Jurisdiction to proceed on its basis.'

(3) The additional ground sought to be taken in this Court is in the following terms: -

'THAT the respondent never served upon the appellant any ntoice terminating his tenancy. The respondent could nto have moved the application for eJectment in this case without first duly terminating-the tenancy. The eJectment ordered in this case is in violation of the law laid down by the Hon'ble Supreme Court of India in Manujendra Dutt v. Purnendu Prasad Roy'

Rule 23 relied upon by the appellant merely provides that in deciding any question rela-ting to the procedure nto specially provided by the Act and the Rules framed there under, the Controller and the Rent Control Tribunal should, as far as possible, be guided by the provisions contained in the Code- of Civil Procedure. It-is obvious that this rule does nto apply to this Court, but this merely shows that insertion of Rule 23 in the heading of the application is redundant. The appellant's learned counsel has submitted that by virtue of the recent decision of the Supreme Court in Manujendra Dutl v. Purnedu Prosad Roy Chowdhry, it was necessary for the landlord to give a valid ntoice under section 106', Transfer of Property Act, before he could initiate proceedings before the Kent Controller for evicting the appellant under the Act. According to him, amsndment can be allowed even in the Court of last resort if the amendment sought goes to the roto of the matter. He has in the alternative also contended that even without amendment of the pleadings before the Kent Controller for evicting the appellant under the Act, according to him, amendment can be allowed even in the Court of last resort if the amendment sought goes to the roto of the matter. He has in the alternative also contended that even without amendment of the pleadings before the Rent Controller and of the grounds of appeal, this Court should, in the interest of justice, hear the appellant on the additional point in support of the challenge against the orders of the Tribunal and the Rent Controller that the eviction proceedings were incompetent in the absence of a ntoice under section 106, Transfer of Property Act.

(4) During the course of arguments, the appellant's learned counsel concentrated most on his praver to be permitted to argue the point of want of ntoice under section 106, Transfer of Property Act, as, according to him, this plea went to the roto of jurisdiction of the Controller to entertain the proceedings for eviction. I may, thereforee, first deal with the argument that the appellant should be permitted to raise in this Court on second appeal under section 39 of the Act the new point of incompetency of the eviction proceedings before the Rent Controller in the absence of a valid ntoice under section 106 of the Transfer of Property Act. This section may here be read : -

'106.In the absence of a contract or local law or usage to the contrary, a lease of immoveable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on--the part of either Lesser or lessee, by six months ntoice expiring with the end of a year of the tenancy ; and a lease of immoveable property for any toher purpose shall be deemed to be a lease from month to month, terminable on the part of either Lesser or lessee by- fifteen days' ntoice expiring with the end of a month of the tenancy'. Every ntoice under this section must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally^ to such party, or (to one of his family or servants, at his residence) if such tender or delivery is nto practicably affixed to a conspicaoas part of the property.'

So far as relevant for our purpose, all that this section says is that a lease of immovable property for any purpose toher than agricultural or manufacturing purpose is to be deemed to be a lease from month to month, terminable on the part of either Lesser or lessee by fifteen days' ntoice) expiring with the end of a month of the tenancy. This deeming provision, it is obvious, would nto prevail where the contract itself pro- . vides to the contrary or where a local law or usage negative such a deeming provision. It is, thereforee, clear that an objection of this kind, if raised, may be met by several possible pleas on which evidence may have to be led. It is exiomatic that an appellant is nto entitled as of right to raise a new point nto contained in his memorandum of appeal and he can only do so with the permission of the Court. Indeed, this statutory rule finds statutory recognition in Order 41, Rula 2, Code of Civil Procedure and its rigour cannto be held to be lessened when the second appeal is competent only on a substantial question of la v. The Court's permission, in my opinion, involved the exercise of Judicial discretion keeping in view the scope of the appeal, the nature of the objection raised, the state of the record, the reason why it was nto embodied in the memorandum of appeal and the fact whether or nto the opposite party would be prejudiced or taken by surprise. In short, a new point of law should be allowed only to promtoe the larger cause of justice on a judicious consideration of the interests of buth parties. When a new point is sought to be raised on appeal after the expiry of the period of limitation for preferring the appeal, then this aspect may also nto be completely ignored. The appellant's learned counsel has placed reliance on a decision of the Federal Court in Lachmeshwar v. Keshwar Lal, where it is laid down that the hearing of an appeal under the procedural law of India is in the nature of re-hearing and, thereforee, in moulding the relief to be granted in a case on appeal, the Appellate Court is entitled to take into account even facts and events which have come into existence after the decree appealed against and that consequently the Appellate Court is competent to take into account legislative changes since the decision in appeal was given. It is contended that the present proceedings must also be considered to be re-hearing of the eviction proceedings. This Court on second appeal under section 39 of the Act should, according to the submission, be considered to be trying an eviction application as a Rent Controller with a free hand to permit all pleas sought to be raised

(5) I am disinclined, as at present advised, to allow this point to be raised on second appeal under section 69 of the Act. The decision of the Federal Court is quite obviously no authority for the view canvassed and in any event, the ratio of this decision is nto at all applicable to the facts and circumstances of the case in hand. It is no doubt true that, as observed by Lord Watson delivering the judgment of Privy Council in Connacticut Fire Insurance Company v. Kavanagh, 'when a question of law is raised for the first time in a Court of last resort, upon the construction of a document, or upon facts either admitted or proved beyond controversy, it is nto only competent but expedient, in the interests of justice, to entertain the plea.' But this is nto the whole law on the subject, for in the following observations, it was added :-

'THE expediency of adopting that course may be doubted, when the plea cannto be disposed of without deciding nice questions of fact, in considering which the Court of ultimate review is placed in a much less advantageous position then the Courts below. But their Lordships have no hesitation in holding that the course ought nto, in any case, to be followed, unless the Court is satisfied that the evidence upon which they are asked to decide establishes beyond doubt that the facts, if fully investigated, would have supported the new plea.' In Official Liquidator v. Buriorjee the Privy Council after reproducing with approval the above passage declined, on the facts and circumstances of the case, to allow the new point of non-registration of a document to be raised, expressing its view thus:- Their Lordships thereforee reward themselves as free to consider upon general principles, whether the appllant ought to be allowed to raise the point , non-registration. They are satisfied that he ought nto to be allowed to do so It his alreedy been pointed out that the circumscances in which the appellant's petition founding these proceedings was launched are by no means clear. The parties are nto agreed upon the facts. There are indications of a course of conduct or agreement on the part of the liquidator which would preclude him from raising any point in the proceedings except that as to the respective positions of the company and Moola in regard to the agreement of 27th July 1921. In this state of the evidence, it would nto in their Lordships' judgment be in accordance with the principles indicated by Lord Watson, in the judgment already cited, to take into consideration at this stage for the first time the point of the non-registration of the document.'

In Provincial Treasurer of Manitoba v. W.m. Wrigley Lord Radcliffe deliverirg judgmnet of the Privy Council obseryed as follows -

'THOSEconsiderations do indeed prevent a strong argument for the Beard to retrues to entertain an appeal which has this issue as its only ground.....effect the appellant, now that the question of principle on which he has hither to fought the. has been decided contrary to his contention, is se king at this late stage to raise a new ground which he has nto presented to the courts below. Result is that their Lordships are invited to decide the matter without the assistance of.any observations bearing on it in the judgments of the learned judges of the Supreme Court; and such allusions as are made to it in some of the judgments in the Court of Appeal Of Manitoba certainly do nto suggest that any substantive is'Sue wa5 argued before that Court as to Major J's jurisdiction to make the order that he did. But the point has now been full argued before their Lordships and this is nto a ase.in which the respondent has been amy way way taken by surprise by the presentation of the argument, since it is the same as that propounded by Dysart J...in the Mahitoba Court of Appeal. Their Lordships, having considered the appellant's argument, , do. nto .agree with, it any, since Major J.'s order has been restored by the Sup: eme Court without any explicit reference to this point, it appeared, to their Lordships that the.balance of public advantage in this case inclined towards their.entertaining the appeal on this new ground and.stating their reasons for thinking that it ought ribt to succeed. This. they now proceed to do. But they think' it 'well to' add a reminder that the course that they have taken 'on this occasion is nto a-precedent for allowing an ..appeal, to succeed en antoher occasion in any comparable circurostances.'

This passage clearly, suggests, that the balance, of public advantage, in that case on its peculiar circumastance induced the Privy Council to deal with the point, but a warning was.recorded that in future that precedent would nto. be followed for allowing an,appeal.,ln Warehousing & Foruarding Company of East Africa Ltd., v. Jafferalli & amp; Sons Ltd, Lord Guest delivering the judgment of the Privy Council made the following obser vat ions:-

'THEIR Lordships now address them-elves to the preliminary point -taken by the appellants that it , nto open to the respondents to argue the new point before the Court of Appeal. As their Lordships have already indicated, it is impossible to consider this point in isolation without reference to the argument based on the rest of the evidence. It was no doubt with in the pleadings, it was no doubt within the issues. Equally, no doubt, is took appellants' counsel by surprise and misled him as to the case which the respondents were making. Nevertheless, if the full facts have been fully investigated or it the facts had been fully investigated and the full investigation would have supported the new case, then there would be no objection.'

After reproducing the passage at eady qutoed from the judgment in the case of Connecticut Fire Insurance the learned Law Lord continued:-

'THE question of ratification was never investigated r. either its terms nor its date. It is nto posible to say that the result would have been bound to be the same whatever these investigations had revealed. Applying the principles above referred to, their Lordships have no hesitation in saying that the respondents ought nto to have been allowed to argue the new point before the Court of Appeal and they find it impossible to say that the appellants were nto prejudiced by the course taken by the Court of Appeal.'

The settled legal position would seem to be that the appellant has to show that in the larger interests of justice, the new point should be allowed to be raised and merely because be is likely to succeed on the new point, is by itself nto enough to justify the Court tearing the Ap peal to exercise its judicial discietion in his favor for the question of prejudice to the opposite party has also to be taken into account.

(6) In the case in hand, in the eviction petition, which consists of a general printed form, presumably commonly sold in the market, filled in the form of reply by the ejectment petitioner, in paragraph l8(b), against a printed question, 'whether ntoice required has been given and if so, particulars thereof (copies of such ntoice and tenant's reply, if any, should be furnished)', the requirement of ntoice was certainly denied, It is ntoe worthy that the Act contains certain provisions under which a ntoice is necessary. For example, when rent is sought to be increased by the landlord he is required to give to the tenant ntoice of his intention to make the increase, and indeed it is further provided that such ntoice shall be in writting signed by or on behalf of the landlord and given in the manner provided in section 106 of the T. P. Act. Again, when the eviction of the tenant is claimed on the ground of non-payment of arrears of rent, it must show that such arrears were nto paid or tendered within two months of the service of ntoice of demand in accordance with section 106 of the T. P. Act. Ntoice is also provided for creation and termination of sub-tenancy. In view of these provisions, it cannto be said that the printed para 18(b) of the petition necessarily referred to the ntoice of termination of tenancy under section 106, T. P. Act. Reverting to the written statement, however, all that was pleaded was, 'para 18(b) needs no reply.' The main defense on the merits as discernible from the written statement, was that the petitioner seeking eviction was nto the owner of the demised bailding and his claim of bona fide requirement was malafide. It was added that he was inoccupation of a very good residential accommodation and by the ejectment application, he wanted to put pressure on the tenant to inciease rent thereby or to earn pagree which was illegal and prohibited by law. Had the plea of want of ntoice under section 106, T. P. Act, been taken by the present appellant in his written statement, it cannto now be sate by predicted, what pleas the present respondent would have taken to meet the objection. Evidently, several pleas could be taken to successfully defeat the object of absence of ntoice. In any event, the present respondent could, at worst, have withdrawn the ejectment application and instituted fresh proceedings after serving the ntoice, if considered necessary and thereby would have been able to have final decision on his claim to secure possession oi the house on the ground of bona firte personal requirement. The plea of want of ntoice under section 106, T. P. Act, in this Court in the present proceedings can thus by on means be considered to amount merely to raising a pure question of law determinable upon facts either admitted or proved beyond controversy. In any case, it is nto possible to hold that the respondent would nto have been seriously pre-judiced by allowing the appellant to raise this new point at this late stage for the first time.

(7) The learned counsel for the appellant has submitted that the uniform view of law taken in the various decisions of the Punjab High Court was that no ntoice was required for securing an eviction order under the Act from the Rent Controller. According to him, it is only recently that the Supreme Court has in the case of Manujendra Dut clarified the legal position and that it is because of this clarification thatthe new point has become material and is desired to be raised. It is of course true that the Punjab High Court has consistently taken the view that no ntoice of ejecement under section 106 of the Transfer of property Act is neces?aiy where the landlord seeks ejectment of the tenant under the Delhi and Ajmer-Merwara Kent Control Act: see Hem Chand v. Smt. Sham Dew' Bhaagwant Singh v. Mrs. N. D Khmna and Midan Gopal v. Om Parkash. But as I look at the position, if these decisions did nto appear to the appellant to have taken correct view of law, it was open to him to raise the plea of want of ntoice and claim trial of that plea so as to be able to press it on final appeal in this Court by questioning the correctness of the earlier decisions just mentioned. It may be remembered that Courts do nto make laws: they only declare what the law is in the process of adjudicating the controversies before them. The appellant could and should have prepared the foundation in the Court of first instance for effectively arguing this point in this Court in the present proceedings. However, turning to the decision of the Supreme Court in Manujendra Dutt's case on which Shri Safeer has placed main reliance it deals with the Calcutta Thika Tenancy Act (2 of 1949) as amended by the Calcutta Thika Tenancy (Amendment) Act (6 of 1953). Now section 4 of the Act of 1949 quite clearly lays down that ntoice in the manner provided under section d670191 of the T. P. Act is necessary before a landlord can be competent to eject any Thika tenant from his holding. The Supreme Court was apparently confronted with the argument that by virtue of section 3 of the Thika Tenancy Act, no ntoice under section 106 of the Transfer of Property Act was necessary and it was this argument which was repelled. It is ntoe worthy that even in clause 7 of the contract of lease in that case, there was a provision that before the lessee could be required to vacate the premises, be would be served with a six months ntoice. The Supreme Court expressly took this clause into account, as is obvious from the following observations, summarizing the legal position :-

'THE Thika Tenancy Act does nto confer any additional rights on a landlor but on the contrary imposes certein restrictions on his right to evict a, tenant under the general law or under the contract of lease. The Thika Act like toher Rent Acts enacted in various States imposes certain further restrictions on the right of the landlord to evict his tenant .and lays down that the status of irremovability of a tenant cannto be gto rid of except on specified grounds set out in Sec. 3. The right of the appellant thereforee to have a ntoice as provided for by the proviso to clause 7 of the lease was nto in any manner affected by section 3 of the Thika Act. The effect of the non obstiante clause was that even where a landlord has duly terminated the contractual tenancy or is toherwise entitled to evict his tenant he would still be entitled to a decree for eviction provided that his claim for possession 'alls under any one or more of the grounds in Section 3. Before thereforee the respondernts could be said to be entitled to a decree, for eviction they -had first to give six months' ntoice as required by the proviso to clause / of the lease and such ntoice nto having been admittedly given their feun. h)r eviction could rito succeed.'

These observations, though somewhat broadly worded would senn to me to be confined to the facts and the provision of law with which the Supreme Court was concerned and it would be open to question 'if the Supreme Court intended to over rule the decisions of the Circuit Bench of the Punjab High Court dealing with the provisions of the Act which concerns us in the case in hand. Without expressing any considered .opinion on the point whether on the authority of this Supreme Court derision, a ntoice under section 106 of the 1. P. Act is an essential prerequisite for, initiatmg eviction proceeding under the Act, I would, decline, on the facts and circumstances of this case .to allow the appellant to raise the new point in question in the present proceedings.

(8) I now turn to the prayer for amendment of the written statement. As observed earlier, the Courts do nto make laws by their judicial decision. They merely dedare what the law 'is. By this I mean that the Supreme Court also does nto make law by ]'udicfa.lly deciding controversies broug3a.t before it. -It is no doubt true that as provided by Older b Rule 17, Civil Procedure Code ., the Court may at any stage of the proceedings allow either party to alter or amend his, pleadings in such manner:, and on such terms as may be Just and in the larger 'interests 'of justice, the Courts should, as as general, permit amendments whith maybe necessary for determirimgtherealiquestion 'in controversy-between, the. parties. Power of allowing amendment of -pleadings in the proceedings 'under the Act 'has .also-been direc.tly recognised by a Bench of this Court in Mst. Sardar Begum v. Jagdish Chand Bhandan, But this power, it must nto be forgtoten, 'is also ''ditoretionary, thragh the discretion is to beexercised, on recognised judicial principles. Even the mandatory form of the second part of the rule 17 has been interpreted to be only a iule of conduct which is subject to the inherent power of the Court to prevent injustice and it has nit been given the mandatory rigidity such as can never b' departed from The broad settled rule, as I visualise it, is that a party is allowed to make such amendment? as may be necessary for determining the real question in controversy or to avoid multiplicity of proceedings, provided there has been no undue delay, no new or inconsistent case is introduced, no vested interest or accrual of legal right is affected and the application is made bonafide which may be allowed without injustice to the toher side. The main object of allowing amendment is to get at the rights of the parties and to avoid multiplicity of suit. where the dispute can be settled in pending proceedings without unfairness or injustice to the toher side. The basic principle guiding that discretion of the Court in the matter of amendment is that no amendment should be allowed which causes injustice to the toher side, for the scales of justice must be held even between the contesting parties. In assessing the injustice, the Court has to consider whether the amendment puts the toher party to a disadvantage or causes him injury, and if it does, then can the disadvantage or the injury be adequately compensated by costs. In the case in hand if the written statement is allowed to be amended, then it would indisputably mean a fresh trial from the very begining of the application for ejectment which was filed as far back as December, lb64. The grave injustice to the respondent who has been pursuing these proceedings for the pu'pose of his own occupation of the promises as residence for himself and his family, cannto b? justly or' adequately remediea' bymere payment of costs, assuming the new plea can in law be considered necessary for the purpose of determining the real question in controvers between the parties, of which I am far from satisfied The real question in controvery between ttie parties seems to me to center round the respondent's bonafide reqwiement of the premises for occupation as residence for himself and for his family. But the appellant's learned counsel has contended that want of ntoice goes to the roto: of jurisdiction of the Rent Controller and, thereforee, if no ntoice is given, then any order made by the Rent Controller or the Appellate Tribunal, would bewithout jurisdiction and, thereforee, anullity. I am afraid it is nto possible for me to sustain 'this extreme submission. Shri Safeer has drawn my attention to arecent decision of the Orissa High Court in Abani Kumarv . Ram Gopal, in which following the decision of the Supreme Court in the case of Manujendra Dutta , was observed that since, no ntoice' to quit had been served by the landlord under section 106 of the T. P. Act, the order of eviction made by the A.D.M. Cuttaok was ultra virus without jurisdiction, nullity and inexecutable. 'Whether or nto on the facts of that case this decision was correctly given, I am wholly unable to hold that the order made by the Rent Controller or the Appellate Authority under the, Act which concerns us, directing eviction of a tenant in the absence of a ntoice under section 106, T. P. Act, would be ultra virus without jurisdiction and a, nullity, .the execution of which can be ignored and the legal existence of which can can be challenged in 'colla teral suits. The Supreme Court decision does nto, in my view, support this extreme conclusion. My attention has also been drawn to a Full Bench decision of the Patna High Court in Niranian Pal v. Chaitanvalal Ghosh, in 'which Sahai, J. observed that in the case of a contrac tenancy, lease mast be determined before the landlord can maintain an action for the tenant's eviction under section Ii of the Bihar Bulidings (Lease, Rent and Eviction) Control Act 3 of 1917, but no attempt has been madi to show that the Bihar Act was similar to the Act which concerns us. Reference by Shri Safeer to the dacision of the Supreme Court in Mangilal v. Sugan Chand, is also of little assistance and it is nto passible to hold on the basis of this authority that a ntoice under section 106, T. P. Act, was necessary before initiating the present proceedings before the Rent Controller. This decision certainly does nto lay down that an eviction order without a ntoice undar section 106, F.P. Act, would be void for want of inherent jurisdictioin in the R'nt Controller. Th3 word 'Jurisdiction', I may point out, is used in two senses in law; one in a general sense and the toher in a narrow sense. It may either mean what is ordinarily understood by that term, when used with reference to the local jurisdiction of a Court, or pecuniary jurisdiction of a Court, or its jurisdiction with reference to the subject matter of a suit, or with reference to parties before it. It may in the second sense mean the legal authority of a Court to dl certain things. In one sense of the word 'jurisdiction', a Court may be said to have power to entertain the dispate, though in antoher sense it may be slid that it has exceeded its power in granting the relief which it was nto authorised to grant. A Court may have jurisdiction to entertain a suit, yet some of the reliefs claimed may nto be legally permissible. By way of illustration, when dealing with the competency of a revision in the High Court, it is often said that the order of the Court below is without jurisdiction, though it may nto a propriately be said that any cogency or justification that the order is a nullity in the sense of want of inherent jurisdiction of the Court over the subject-matter and the parties. I have nto been persuaded to hold that any order made by a Court or by the Rent Controller having inherent jurisdiction over the subject-matter of the controversy and the parties can be said to be a nullity merely because an order of eviction has been granted in the absence of a ntoice under section 106, T.P. Act, even when such ntoice may be considered necessary. It may be recalled that section 106 merely lays down a deeming provision in regard to duration of certain leases in the absence of contract or local us- age and provides for their termination by ntoice for specified period to be served in the manner provided. It does nto exclude or prohibit toher means of terminating such leases, nor does it concern itself with the inherent jurisdiction of the Courts empowered to deal with eviction proceedings. Want of ntoice under this section accordingly does nto seem to me to go to the inherent jurisdiction of the Court or the Rent Controller under the Act. I have, thereforee, no hesitation in repelling the appellant's submission buth in regard to his prayer for permission to raise the point of ntoice in these proceedings and his prayer for amendment of the written statement.

(9) The respondent's learned counsel has contended that the lease in favor of the appellant was created long before section 106, T. P. Act, was extended to Delhi, with the result that this section cannto be held applicable to the lease in question. The appellant's counsel his sought to meet this paint by submitting that the relevant time to consider the applicability of section 103 is when eviction proceedings are initiated aid nto the creation of the lease, and if the section is in force when the eviction proceedings start, then they would be governed by it irres respective of the fact that the given l''ase was created prior to its enforcement. He has added that ntice under section 106 cannto be waived by the tenant. It is stated by the respondents counsel that the appellant had taken possession of the premises in question in 1947 after the partition of the country when the Muslim tenants had vacated them and the appellant started paying rent under the directions of the Custodian of Evacuee Property. The tenancy thus created, according to the counsel, does nto attract the applicability of section 106, T. P. Act. The arguments addressed by the parties on this point have nto been fully developed and I should nto like, as at present advised, to express any considered opinion on it; nor would I like to express any opinion on the question whether the tenant can waive service of ntoice under section 106 or when ntoice may be considered necessary under the general rule of equity. Justice and good conscience because I have nto had the benefit of full-dress argunments on these aspects. I would prefer to base my decision on the view that on the facts and circumstances of the present case, no cogent ground for the exercise of this Court's discretion is made out for permitting the appellant either to urge the new point on the second appeal or to amend the written statement.

(10) In so far as the merits of the appeal are concerned, there is precious little to be said in support of the appellant's challenge to the conclusions arrived at in the impugned order. The order of the learned Tribunal is fairly well reasoned and I am wholly unable to find any fault with its reasoning or its conclusion. The industry and research of Shri Safeer has, however, enabled him to urge that Exhibit P. 6, which is a judgment dated 25th February, 1954, is in admissible in evidence and, thereforee, the present respondent should nto be considered to be the owner of the property in question. Unless the Respondent 1s buth an owner and a landlord, according to Shri Safeer's submission, he cannto initiate proceedings for eviction under section 14(8) of the Act. If Exhibit P. 6 is ruled out as inadmissible then there is no reliable documentary evidence proving the respondent's ownership, argues Shri Safeer.

(11) This submission has nto appealed to me. Exhibit P. 6 is a judgment of a competent civil Court in a suit instituted by the respondent Sura Pershad against his father, his mtoher and his brtohers for a declaration and injunction thit he was the owner of the property including the property in question and that the defendants bs restrained from interfering with his possession. This suit was based on the plea of partition of the family property. Some of the defendants admitted the plaintiff's claim and the suit was decreed against them on the basis of their admission. As against the tohers, the trial was held ex-parts and the suit decreed on the merits. Shri Safeer's argument is that the appellant nto being a party to the suit, that litigation daes nto bind him and no partition-deed having been produced in evidence, the factum of the alleged partition cannto be proved by any oral evidence. Obviously, this argument is difficult to sustain. In the suit between the present respondent and the members of his family, the present appellant was neither a necessary nor a proper party because he was only a tenant. Exhibit P. 6, it is nto disputed, binds all the parties thereto. If they are bound, then they cannto challenge the present respondent's to challenge the property of which he was duly declared owner. The present appellant who is only a tenant and claims his rights as such through his landlord, quite clearly cannto question the admissibility of the judgment exhibit P. 6 on the ground that it does nto bind him, he being nto a party to it. This judgment binds the landlord of the present appellant and it is nto easy to understand how it is inadmissible in evidence in proving the present respandent's title declared by it in his contest against the toher members of the family. It is futile to contend that only the partition-deed could have established the respondent's title in the present proceedings, for, the judgment of a competent Court must, in my view, be held to conclude the matter. The argument based on the suggestion of collusion amongst the members of the family in suffering the judgment Exhibit P. 6 to be passed in favor of Suraj Pershad, as faintly thrown by Shri Safeer in this Court, does nto seem to me to be open to the present appellant on the facts and circumstances of this case, more particulary on second appeal. No convincing argument has been advanced and no principle or precedent has been brought to my ntoice according to which the present appellant can ignore the judgment exhibit P. b.

(12) The respondents' counsel has also relied on Exhibit P. 2, the mutation of the property in favor of the present respondent Exhibit P. 3, receipt of lease money in respect of the plto in question and Exhibit P. 4, house tax receipt showing payment of tax by the respondent. This evidence, according to the respondent's counsel, fully establishes his title. In addition, reliance has been placed on Exhibits P.9 and P. 10, the counter-foils of the receipts for rent. These documents undoubtedly support the plea of the present respondent' title to the property in question, and taking into account the entire material on the record, I find no hesitation in holding in agreement with the Courts below that the present respondent is buth an owner and landlord in respect of the property in question. The conclusion of the Tribunal on the question of bona fide requirement is unexceptionable and ntohing cogent and convincing has been said in its criticism which would justify interference on second appeal under section 39 of the Act.

(13) For all the foregoing reasons, I dismiss the appeal but in the peculiar circumstances, leave the parties to bear their own costs in this Court.


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