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Ram Prakash Vs. Bhagwanti Devi - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberCivil Miscellaneous Second Appeal No. 305 of 1971
Judge
Reported in1975RLR215
ActsDelhi Rent Control Act - Sections 40; Code of Civil Procedure (CPC), 1908 - Sections 151
AppellantRam Prakash
RespondentBhagwanti Devi
Advocates: V.M. Issar and; F.C. Bedi, Advs
Excerpt:
- - (9) as for the bonafides of the applicant, we are fully satisfied......was admitted by the appellant the order requiring deposit of rent passed by the learned additional rent controller would be considered under section 15(4). (4) at the time when appeal was filed, it was also the contention of the appellant that he was in any case entitled to the adjustment of the amounts deposited by him u/s 27. the admitting bench while admitting the appeal in relation to the order under section 15 (1) directed that the appellant will deposit in court the amount of rent up to date as ordered, less the amount already deposited in the names of the heirs of the late chuni lal the appellant consequently deposited all the rent due under the impugned order under section 15(1) less the amounts already deposited by him under section 27. (5) while arguing the appeal, this order.....
Judgment:

S.N. Shankar, J.

(1) The dispute between parties was adjudged by judgment reported as 7972 Raj L R. 137 Connected case which necessitated adjudication on interim matter consequent on death of husband of respondent is 1974 Raj LR. (N). 110. In 1972 R.L.R. 137, it was ordered that order of A.R.C would be deemed as under S. 15 (4) instead of U/S 15(1) but by erroneous omission, tenant was not given any time to deposit the arrears He made the instant application for modification of the order. After narrating above facts in detail, the judgment para 4 onwards is : -

(2) Against both these order of the Tribunal the appellant came up in appeal to this court which was decided by order dated October 11, 1972 which forms the subject matter of this application.

(3) We held that the Controller had no jurisdiction to pass an order under Section 15(1) on the basis of prima facie evidence without deciding whether Bhagwanti Devi alone was the landlady of the appellant, but as sub-section (4) of Section 15 authorised the Controller to pass an order for deposit of rent payable by the tenant under Sub- Section (1) of Section 15 in a case where there was any dispute as to the person or persons to whom the rent was payable and as the tenancy qua the premises was admitted by the appellant the order requiring deposit of rent passed by the learned Additional Rent Controller would be considered under Section 15(4).

(4) At the time when appeal was filed, it was also the contention of the appellant that he was in any case entitled to the adjustment of the amounts deposited by him u/s 27. The admitting Bench while admitting the appeal in relation to the order under Section 15 (1) directed that the appellant will deposit in court the amount of rent up to date as ordered, less the amount already deposited in the names of the heirs of the Late Chuni Lal The appellant consequently deposited all the rent due under the impugned order under Section 15(1) less the amounts already deposited by him under Section 27.

(5) While arguing the appeal, this order of the admitting Bench was not noticed. While holding that the order mad? by the Additional Rent Controller u/s 15 (1) on the basis of prima facie evidence of subsistence of relationship between the appellant and Bhagwanti Devi was not sustantible in law we directed that it would be considered to be an order passed under Section 15(4). In other words, we, by our order deciding the appeal for the first time, passed the order u/s 15(4) and quashed the order u/s 15(1). But while making the order u/s 15(4), we did not specify the time within which the appellant had to make the deposit in compliance with this order. The law prescribed one month's time for this purpose u/s 15(1). The appellant was entitled to this period as of right u/s 15(4) read with section 15(1). The omission to give this time was purely accidental and we see no reason to refuse to amend our order by allowing this time to the appellant.

(6) It would be seen that as a result of the order of the admitting Bench the appellant had made deposits of rent payable by him to Bhagwanti Devi alone less the amounts already deposited by him in the joint names of Bhagwanti Devi and her sons and daughters, the others heirs of Chuni Lal, so that on the date we made the order under section 15(4) the appellant had to deposit again the sums that he had previously deposited u/s 27 in the Joint names of Bhagwanti Devi and her sons and daughters. These sums he had not deposited afresh because of the order of the admitting Bench. A few months after the decision of the appeal the respondents applied u/s 15(7) for the appellant's defense being struck out because of his having not made these deports afresh in the name of Bhagwanti Devi alone. It was never our intention to deny to the appellant his right to make these deposits within one month of the order made by us. The omission is thus an unintentional error. It is true that the omission occurred because the learned counsel for the appellant did not bring the order of the admitting Bench to our notice at the time of argument. But that does not make any difference.

(7) In Master Construction Co. (P) Ltd. Vs . State of Orissa : [1966]3SCR99 Subba Rao, J. Speaking for the court in relation to slip or omission for purposes of section 152 has said that the Cause for such a slip or omission may be the Judge's inadvertence or the advocate's mistake. In both the cases section 152 could apply. In Jatindra Nath Choudhary v. Uday Kumar Dass and others : Air 1931 Pri Cou 1104, the Privy Council said.

'THEjurisdiction of the Board to recommend the alteration of a former order in Council on the ground that by inadvertence it does no give effect to the intention of the Board as expressed in their judgment is undoubted. Such a jurisdiction was exercised in the present case in order not to defeat the manifest right of the defendant which were intended to be effectuated by the former decision of the Board.

(8) Shri Badi, the learned Counsel appearing for the non-applicant respondent argued that the appellant had already made a default in deposit or arrears of rent in accordance with the order of the Tribunal before he filed the appeal in the High Court and as such he is not entitled to the exercise of this court's discretion We are unable to agree. The order of the Additional Rent Controller affirmed by the Tribunal was u/s 15 (1) of the Act. We have held in the appeal that this order was wholly unsustainable in law. The question of a default by the appellant under this order, thereforee, has no relevancy.

(9) As for the bonafides of the applicant, we are fully satisfied. Shri Issar, learned counsel appearing for the applicant, contended that as far as total rent deposited by his client before the Additional Rent Controller and in proceedings u/s 27 is concerned the amount is more than enough to cover the entire rent payable by the appellant in respect of the premises. Shri Bedi did not dispute this position but sought to rely on technicalities and the omission of the respondent to make a fresh deposit after the making of the order in appeal.

(10) For the reasons aforesaid, we accept the application and amend our judgment in appeal dated October 11, 1972. The following paragraph shall be added as the last paragraph of the judgment :-

'THEappellant shall comply with the aforesaid order of the Additional Rent Controller and make the deposit within one month from today.'


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