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Hari Mohan Nehru Vs. Rameshwar Dayal - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 162 of 1978
Judge
Reported inAIR1980Delhi291; 17(1980)DLT284; 1980RLR249
ActsDelhi Rent Control Act, 1958 - Sections 14(1); Code of Civil Procedure (CPC), 1908 - Order 6, Rule 17
AppellantHari Mohan Nehru
RespondentRameshwar Dayal
Advocates: J.L. Kalra and; O.P. Tyagi, Advs
Cases Referred(See Ram Karan Das v. Bhagwan Dos
Excerpt:
the case debated on whether the bona fide requirement should be a part of the pleaded case - in the instant case, the pleadings were not elaborate on account of the prescribed statutory forms by the supreme court - however, the said statutory forms would not allow the landlord to deviate from rules - thereforee, in view of the observation, it was ruled that the landlord had no other suitable residential accommodation - - 13,650.00 is due from him towards arrears of rent which he has not paid inspire of repeated demands, oral as well as written'.(5) the tenant in his written statement denied that he was in arrears. on this evidence the additional controller was not satisfied. the landlord is not entitled to seek eviction of the tenant on the ground of non-payment of rent unless he serves.....a.b. rohatgi, j.(1) this is an appeal from the order of the rent control tribunal dated april 25, 1978. (2) the appellant is a tenant of the ground floor of house no. e-130, greater kailash no. 1, new delhi on a monthly rent of rs. 650.00 . he took the premises on july 1, 1971. the respondent is the landlord. on january 3, 1976, the landlord brought an application for ejectment of the tenant on three grounds. one was bona fide requirement. the second was nonpayment of rent. the third was non-residence of the tenant in the premises for more than one year. the additional controller, smt. manju goel dismissed the application. on appeal the tribunal ordered ejectment of the tenant on all the three grounds. (3) i shall first take up the ground of non-payment of rent. on october 22, 1975, the.....
Judgment:

A.B. Rohatgi, J.

(1) This is an appeal from the order of the rent control tribunal dated April 25, 1978.

(2) The appellant is a tenant of the ground floor of house No. E-130, Greater Kailash No. 1, New Delhi on a monthly rent of Rs. 650.00 . He took the premises on July 1, 1971. The respondent is the landlord. On January 3, 1976, the landlord brought an application for ejectment of the tenant on three grounds. One was bona fide requirement. The second was nonpayment of rent. The third was non-residence of the tenant in the premises for more than one year. The Additional Controller, Smt. Manju Goel dismissed the application. On appeal the tribunal ordered ejectment of the tenant on all the three grounds.

(3) I shall first take up the ground of non-payment of rent. On October 22, 1975, the landlord's counsel served a notice of demand on the tenant. In the notice the landlord said : 'You arc very irregular in payment of rent and a sum of Rs. 12,350.00 are due from you on account of arrears of rent calculated up to October 31, 1975, after deducting the total amount paid by you uptil now since occupation of the tenancy premises by you.' In the end he called upon the tenant to pay the aforesaid arrears of rent within two months of the receipt of the notice and to vacate the premises.

(4) In the application the ground of non-payment of rent was set out in these words:

'THE respondent is a regular defaulter in the payment of rent and a sum of Rs. 13,650.00 is due from him towards arrears of rent which he has not paid inspire of repeated demands, oral as well as written'.

(5) The tenant in his written statement denied that he was in arrears. He alleged that he had paid rent up to October, 1975. The rent of November, 1975, he sent by cheque which was returned to him. The tenant said that he was prepared to pay the rent due from him from November 19 75 onwards. He also took an objection that the landlord 'has not stated from what date to what date the amount on account of rent is due from the respondent to the petitioner.'

(6) On .November 11, 19 76, the tenant made an application to the Additional Controller under Order 6 Rule 17, Code of Civil Procedure. In the application he stated that on June 1, 1976, he had been deprived by the la.ndlord of lawn and verandah which were in his tenancy and occupation. On this ground he claimed that he was entitled to suspend the rent. The tenant submitted that he may be allowed to incorporate in the written statement the plea of deprivation of lawn and verandah and suspension of rent. The landlord opposed this application. The Additional Controller on January 24, 1977, dismissed the application on the ground that the precise words sought to be added had not been specified and no site plan of the portion which has been 'snatched' from the tenant had been filed.

(7) After dismissing the application the Additional Controller proceeded to make an order under Section 15(1) of the Delhi Rent Control Act, 1958 (the Act). As the tenant's counsel admitted before the Additional Controller that no rent was paid after October, 1975, she ordered the tenant to deposit all arrears of rent at the rate of Rs. 650.00 per month from November 1, 1975, to December 31, 1976 within one month of the date of the passing of the order and subsequently rent month by month by the 15th of each succeeding month.

(8) The tenant appealed to the tribunal. The tribunal dismissed the appeal on February 16, 1977. But it observed that the site plan had been filed by the tenant indicating the portion of which he had been deprived. As the tribunal thought that it was open to a party to make a fresh application in proper form, it held that the appeal was not maintainable as the order did not affect any rights. In the result it confirmed the order of the controller directing the tenant to deposit rent from November 1, 1975.

(9) The tenant did not deposit the rent. On September 27, 1977, his defense was struck out under Section 15(7) of the Act. After this the evidence of the landlord was recorded. The landlord examined himself. He examined no other witness. On this evidence the Additional Controller was not satisfied. She dismissed the application for eviction. On appeal the tribunal found that the landlord was entitled to ejectment on all the three grounds pleaded by him. It, thereforee, ordered his eviction. Now the tenant appeals to this court.

(10) The central question is about the validity of the order under Section 15(1) of the Act dated Jaunary 24, 1977. This order was assailed before me by counsel for the tenant. I have to see whether the tenant's defense was rightly struck out and he was justly precluded from defending the case. Under clause (a) of the proviso to Section 14(1) the controller has the power to pass an order for recovery of possession of the premises on the ground, namely:

'THAT the tenant has neither paid nor tendered the whole of the arrears of rent legally recoverable from him within two months of the date on which a notice of demand for arrears of rent has been served on him by the landlord in the manner provided in Section 106 of the Transfer of Property Act, 1882.'

Clause (a) requires 'a notice of demand for arrears of rent' to be served by the landlord on the tenant. The landlord is not entitled to seek eviction of the tenant on the ground of non-payment of rent unless he serves a notice of demand for the arrears of rent and until there is a failure to pay. Now in the notice all that was said was that Rs. 12,350.00 are due on account of arrears of rent calculated up to October 31, 19 75 after deducting the total amount paid. No details of the amount were given. How much the tenant had paid since occupation of the premises was not stated.

(11) In the ejectment application even this much was not alleged. There he made the barest allegation, namely, that 'A sum of Rs. 13,650.00 is due from him towards arrears of rent which he has not paid inspire of repeated demand.' There is no indication of the period for which rent is claimed. It is true that later on a statement of account was submitted by the landlord wherein he showed the various cheques which he had received from the tenant from March 7, 1972, till October 17, 1975. But this statement was filed on September 13, 1976, after the tenant had filed his written statement. It is also true that the controller made an order under Section 15(1) on the admitted footing that the tenant had not paid the rent after October, 1975.

(12) The real question is : Did the landlord make a valid demand of rent as required by sub-clause (a) of the proviso to Section 14(1) In my opinion, the notice of demad was invalid. The notice had merely stated that Rs. 12,350.00 were due on account of arrears of rent calculated up to October, 1975. No particulars were given. Underclause (a) the liability to ejectment is created after a demand for rent is made and the rent is not paid for two months. Now logically, I think, it must follow that if liability under the statute is created by demand, the demand must be a proper demand. It is not easy to determine what are the essential requirements of a demand. But I have no doubt, at any rate, as to two of them. Firstly, that a demand must come from the proper quarter; that means that it must come from the landlord or his counsel. The second requirement, as to which I have no doubt, is that a demand must be a demand for a definite sum alleged to be due on account of arrears of rent from the tenant to the landlord. The period for which the rent has fallen due must be stated. In this case the Additional Controller rightly held that 'the petitioner has not pleaded in specific terms the period from which date the rent is due.' The copy book containing the account of rent produced by the landlord in evidence was discredited by the Additional Controller because it was not regularly kept. She disbelieved the account as it was written in 1977 though the tenancy commenced in July 1971. She held that on evidence it was not proved to her satisfaction that Rs. 13,650.00 were due from the tenant on account of arrears of rent.

(13) The demand at any rate ought to tell the tenant on whom the demand is made in some detail the amount that is claimed from. him and the period for which it is claimed. It is true that no particular form of demand is prescribed. But it is obvious that if an omnibus demand is made for a lumpsum without particularising the amount due to the landlord and the amount received from the tenant, as was the case here) it cannot be said to be a proper demand. There can be no ejectment unless there is a legal liability to pay and a legal liability to pay is to start with demand. In my opinion, a demand which fails in either of these two matters is not a demand which creates a legal liability to pay. The landlord must serve a proper notice of demand. So it must be held that there is no enforceable claim until a demand is made in accordance with clause (a). Of course nothing I have said means that if a wrong sum is in the demand, because too much is demanded, that takes the demand outside the Act. (See Raghunath v. Anand, Narayan, 1966 C. A. 387 of 1964 decided on April 5, 1966 (S.C.). In this case Rs. 7000.00 were demanded in the notice while actually Rs. 6900.00 were due according to the courts below. The Supreme Court held that the notice was not had because more was demanded than due). So long as it is a demand of rent indicating how the amount demanded is arrived at, it is a demand which complies with the statute, and is one which is good on the face of it. The actual amount due will have to be ascertained by the controller.

(14) The liability to ejectment is founded on non-payment of rent in two months after the service of notice of demand. The controller is then empowered to make an order under Section 15(1). He can give relief to the tenant once. But having obtained the benefit once the tenant is not entitled to the benefit again if he makes a default a second time in the payment of rent for three consecutive months. thereforee, it is a matter of great consequence to the tenant. The authorities under the Act have to see whether a proper demand was made on the tenant and whether inspire of it he has failed to pay the rent. The -word 'demand' used in the Act suggests some-. thing more than mere asking. The 'demand' 'of rent holds out a threat to enforce it by eviction proceedings, if not paid within two months of service of notice. See what has happened in this case. The notice made on omnibus demand. A lump sum was stated due up to October 1975. No details were given. Nor were any particulars given in the ejectment application. Later on they were supplied. But at that stage it was too late. The tenant had already incurred the liability of non-payment after service of the notice of demand and the expiry of two months there from. He had become liable to be sue- in ejectment on the ground of non-payment of rent. The controller made an order under Section 15(1). The tenant did not pay. His defense was struck out. All this happened because of an improper notice of demand and its non-compliance. '

(15) I am conscious of the rule that the Privy Council laid down as long ago as 1918 that a liberal construction should be put upon a notice to quit in order that it is not defeated by inaccuracies either in the description of the premises or the name of the tenant or the date of expiry of the notice, and that the test of its sufficiency was not what its contents would mean to a stranger ignorant of all the facts and circumstances but what they would mean to the tenant conversant with all those facts and circumstances and the mistakes should not be construed with a desire to find faults. (See Harihar Banerji v. Bamshashi Air 1918 Pc 102. But with demand it is different. A demand unsettles the mind. It takes away the free will of the demandee. It has thereforee to be specific. I cannot see how the section can apply at all unless the tenant knows exactly how the amount demanded is arrived at. There has to be a good demand to create a legal liability. The notice is quite sufficient if the tenant understands what is meant. (Harihar Bewtrjee p. 107). I do not think that the tenant here can understand liow the amount demanded has become due from him. More so when the landlord did not issue receipts and the tenant contended that he was paying rent in cash also.

15A.It was then said that the order under Section 15(1) has become final. I do not agree. The order can be questioned in appeal against the final order of eviction made by the controller. (See KeharStngh v. Baghunandan Saran 1978) I R.GJ 530. If the document called the demand is one which does not create a legal liability to pay, it cannot subsequently create a legal liability because of a failure to appeal to this court. If the demand is not a good demand I cannot for my part see how a neglect to appeal can turn it into a good demand.

(16) The second point to consider in this case is the application for amendment which the tenant made before the order under Section 15(1) was passed. The tenant pleaded that on June 1,1976, he had been deprived of lawn and verandah and, thereforee, he was entitled to suspend rent. The Additional Controller dismissed the application on two grounds. Firstly, that it was vague and secondly, no plan of the portion deprived was filed. Consequently, the Additional Controller made an order under Section 15(1) against the tenant directing him to deposit rent from November 1975, at the agreed rate of Rs. 650.00 per month. It is true that after October 1975, the tenant had admittedly not paid rent. But his plea of suspension of rent was a defense and this was turned down. He was not allowed to plead this subsequent event. His application was rejected by the Additional Rent Controller. On appeal the tribunal affirmed the order.

(17) In my opinion, both the Additional Controller and the tribunal were in error. The application for amendment ought to have been allowed. A plan was filed showing the portion of lawn and verandah 'snatched' from the tenant. In the application it was clearly mentioned that on June 1, 1976, the landlord had deprived the tenant of the lawn and the verandah which were included in his tenancy. This plea in justice should have been allowed to be raised. It was unjust to require the tenant to deposit rent at the agreed rate of Rs. 650.00 even when the landlord had deprived the tenant of a part of the tenanted premises.

(18) The tenant had a primafacie case of suspension of rent. In the notice dated October 22, 1975, he was described as a tenant of the ground floor. In the ejectment application there is not a word that the lawn is excluded from the tenancy of the tenant. In his evidence the landlord for the first time affirmed that the lawn was in his possession. This shows that the landlord has no regard for the rules of the game. Pleadings are, after all rules of the game which we must observe if there has to be a fair trial.

(19) The application for amendment ought to have been allowed by the Additional Controller and if she did not do it it was open to the Tribunal to correct the error. The amendment sought affected the rights and liabilities of the tenant. If he had deprived of a part of the premisee he had a right to abatement of rent. Appeal to tribunal was competent because on the rule laid down by the Supreme Court in Central Bank of India v. GobalChand (1967) 3 Dlt I (SC) the order refusing amendment seriously affected the rights of the tenant. (See also Bhagwanti v. Haveli Barn 1972 Dlt 217. I have, thereforee, come to the conclusion that the amendment was improperly declined.

(20) The upshot of the discussion is that the defense of the tenant had wrongly been struck out. There are two reasons. Firstly, there was no proper demand of rent in the notice served by the landlord on the tenant. Secondly, the order under Section 15(1) of the Act directing the tenant to deposit rent from October 1975 was wrong because the tenant was not allowed to plead suspension of rent. The result of the striking out the defense is that there was no proper trial. The tenant was not heard. There was denial of justice. The tenant was ordered to vacate,

(21) It is necessary to mention here that the ground of non-payment of rent no longer survives. On March 31, 1977, the landlord instituted a suit against the tenant for the recovery of Rs. 23.400.00 on account of arrears of rent. In paragraph 2 of the plaint he stated that a total amount of Rs. 20,2 70.00 had been received from the tenant and this amount he had appropriated towards rent due to him for the period from July 1, 1971 to March 31, 1974. He claimed that Rs. 23,400.00 were due to him from April 1, 1974, up to March 31, 1977 after giving credit to the tenant for Rs. 180.00 which it was said, the tenant had spent on account of the cost of the slab replaced by him in the kitchen.

(22) I revert to the question of validity of notice of demand. The landlord's pleadings in the suit disclosed the appropriation of the rent paid, the period for which the claim was made and the adjustment of Rs. 180.00 for replacement of a slab. In the notice nothing of the kind was said. The tenant could not divine appropriation or adjustment. He was left guessing. It was a case of its own kind.

(23) It was said that it is the tenant's obligation to paverent and he ought to know better. This is true. But there is equally a corresponding obligation of the landlord to issue receipt of rent. (See Section 26(2) of the Act). If he does. not he must give details in the notice of the amount received, how and when. When a notice of demand is required by law the demandee is entitled to know how the amount demanded from him is claimed. More so when the account runs from the inception of tenancy over a period of five years or more and no receipt is issued. A notice, it is true, has not to be worded with the accuracy of a plea. But the tenant must know how the amount demanded is arrived at so that he can pay. The landlord's civil suit demonstrates how insufficient the notice of demand was.

(24) It is not disputed before me that in the suit for the recovery of rent the entire decretal amount of Rs. 23,400.00 and costs have been paid and that an excess sum of Rs. 589.20 has been paid which the tenant is entitled to adjust. It is also admitted that the tenant has paid rent up to March 31, 1977. Rent is due from April 1,1977 at the rate of Rs. 650.00 per month. The plea about deprivation of a part of the tenanted premises was raised in the civil suit. It was negatived. The tenant did not appear on one of the hearings. The court thereforee proceeded under Order 17 rule 2, Code of Civil Procedure and decreed the suit for Rs. 23,400.00 with costs. The tenant is thereforee not entitled to raise the plea of suspension of rent in the present proceedings in view of the decision of the civil court.

(25) On the question of arrears of rent it is agreed between the parties that rent up to March 31, 1977 at the rate of Rs. 650.00 per month has been paid by the tenant to the landlord. This was paid in execution of the decree obtained by the landlord against the tenant in Suit No. 95 of 1977 decided on January 31, 1979. Arrears of rent from April 1,1977, to December 31, 1979, i.e. for the period of 33 months have also been paid to the landlord @ Rs. 500.00 per month under the order of this Court dated July 12, 1978 made without prejudice to the rights of the parties. Now the difference between Rs. 650.00 and Rs. 500.00 has to be paid by the tenant since the decision in the civil suit has gone against him. This difference comes to Rs. 150.00 per month. The total amount for 33 months @ Rs. 150.00 comes to Rs. 4950.00 .

(26) The tenant is entitled to recover the following two sums :

1. Rs. 589.20 on account of Court fee on Rs. 4550.00 which he was made to pay twice over to the landlord in execution of the decree. 2. Rs. 341.25 which the tenant paid on account of counsel's fee on Rs. 4550.00 for which he confessed judgment. A certificate of fee was filed on 7.7.1977 but after the order had been pronounced as is shown by the endorsement of the learned judge on the certificate. The tenant is thereforee entitled to refund.

(Total-Rs. 930.45). After deducting Rs. 930.45 from the sum of Rs. 4950.00 due to the landlord an amount of Rs. 4019.55 remains payable by the tenant to the landlord. Mr. Kalra on behalf of the tenant agrees to pay this amount to the landlord within one month from today. This means that after payment of Rs. 4019.55 the rent will have been paid to the landlord up to December 31, 1979. This also means that the amount of decree in Suit No. 95 of 1977 is fully paid up. Similarly, the amount claimed by the landlord in another suit pending between the parties in the Court of Shri Jaswant Singh, Subordinate Judge, (Suit No. 5 of 1978) has also been paid because in that suit the landlord has claimed rent at the rate of Rs. 650.00 from April 1, 1977 to December 31, 1977. The claim in that suit stands adjusted. The only question that remains for decision by the learned Subordinate Judge Mr. Jaswant Singh, will be about costs. That question I leave to him to decide.

(27) Now I turn to the two other grounds of ejectment. The, landlord pleaded three grounds of ejectment, as I have said. One of them was bona fide requirement. It was pleaded in these words :

'THE petitioner is the owner of the premises in occupation of the respondent which have been let out to him for residence. The premises are required bona fide by the petitioner for his residence as well as for members of his family. In view of the Government policy the petitioner had to vacate Govt.-allotted accommodation being No. 996, Sector 5, R.K. Puram.'

(28) In the heading of the application it was said that the petitioner is 'under Section 14(1) (a), and (e) and Section 14A of the Delhi Rent Control Act 1958.' From this it would appear that the landlord based his claim of bona fide requirement under Section 14A and not Section 14(l)(e). The landlord did not plead that he 'has no other reasonably suitable residential accommodation.' It is one of the essential ingredients of a claim under Section 14(l)(e). In the absence of this averment there is no proper pleading. On the other hand, the landlord referred to the 'Govt. Policy' and to the vacation of a 'Govt. allotted accommodation' which clearly suggests that he had in mind the newly introduced Section 14A. The heading of the application shows that he brought the case under Section 14A. He said so expressly. But the tribunal paid no attention to this aspect. The averment made was not an averment as required by Section 14(1)(e). The landlord had one foot in Section 14(1)(e) and another in Section 14A. Was his case of a needy private owner or of an evicted Government Servant? The case pleaded was neither the one nor the other. The two grounds of ejectment, namely under Section 14(1)(e) and 14A are distinct. They are mutually exclusive, though the element of need is common to them. This shows that there is a very good reason why the express statutory provision should be adhered to. The Additional Controller held that the landlord had not pleaded that he had no other reasonably suitable accommodation. She said: 'In the absence of any specific pleading in this respect, the petitioner is not entitled to an order of eviction on the ground of his personal bona fide requirement.' I think she was right.

(29) I was referred to Rattan Lal v. Vardesh Chander, : [1976]2SCR906 in support of the submission that the rules of pleadings have no application to ejectment cases. I do not agree. It is true that the pleadings are not elaborate and there is an air of 'comparative informality'' in these proceedings because of the use of the prescribed statutory forms, as the Supreme Court has said. But it does not mean that all rules of the game have been thrown to winds. Rules of pleadings have not been relaxed, if not tightened. That the landlord has no other reasonably suitable residential accommodation has to be a part of the pleaded case. This was so held in Abdul Hamid v. Nur Mohammad 1976 Rcj 738 (742).

(30) I was referred to Dr. Hans Raj v. Shyam Kishme (1977) 2 Rlr 253 (260) where B.C. Misra J. took the view that the weight of the authority of Abdul'Hamid v. Nur Mohammad, supra has been shaken in view of the decision of the Supreme Court in Rattan Lal v. Vardesh Chander. I do not think so. The landlord has to plead the cause of action. And in a case of bona fide requirement cause of action is not only the ownership and letting of a residential house but also the averment that the landlord has no other suitable residential accommodation. Without this averment the application for ejectment will not disclose a cause of action. If the plaint discloses no cause of action, the Court cannot pass a decree in favor of the plaintiff. This is no less true of ejectment suit. (See Ram Karan Das v. Bhagwan Dos, : [1965]2SCR186 .

(31) Now what happened in this case is that the application was tried under Section 14(1)(e). The tribunal thought that it was a claim under Section 14(1)(e). The landlord gave evidence that he was in occupation of first floor and barsati floor of the house and that that accommodation was insufficient for him and the members of the family dependent on him. His evidence-was accepted by the tribunal. The tenant was ordered to vacate not only on the ground of non-payment of rent but also on the ground of bona fide requirement under Section 14(1)(e). This is another instance of miscarriage of justice. A claim expressly made under Section 14A was tried under Section 14(1)(e) of the Act. This was a case of variance between pleadings and proof. The tenant's defense had been struck out. He was not allowed to contest or to give evidence. He was simply asked to vacate by the tribunal.

(32) The same is the case with the third ground. There the landlord pleaded that: 'The respondent is living and posted at Lucknow, as such neither he nor any member of his family is residing therein since more than one year.' Was it the period preceding the institution of the petition? Nothing is said in the pleadings, though in his statement the landlord added these words. This ground is covered by clause 14(1) (d). It was wrongly described as clause (e) in the heading. As the tenant's defense had been struck out he was not allowed to lead evidence on the point. The tenant's case was that though he himself was posted at Lucknow the members of his family were residing in the premises. The landlord in his cross-examination stated that he had recently prepared the plan of the premises filed in the case after taking full measurements. He was asked who was present at that time if the premises were not locked. He said that he did not remember. The Additional Controller was not satisfied with the answer. She found it evasive. She refused to order ejectment. The tribunal did not agree. It ordered ejectment holding that non-residence was proved. In my opinion the conclusion of the Additional Controller was sound. There was no congent proof that the members of the tenant's family were not residing.

(33) I am satisfied that the appellate tribunal having none of the advantages which the Additional Controller enjoyed of hearing and observing the landlord in the witness box was not justified in concluding that she was clearly wrong and in substituting his judgment of fact for hers.

(34) When asked the landlord did not deny that the tenant had paid electricity and water charges up to December 1975. The petition was brought on January 3, 1976 This showed that the tenant's family was in occupation. The Additional Controller saw the landlord and heard his evidence. She formed her estimate of him- His evidence did not inspire confidence in her. Her opinion is entitled to great weight. In my opinion the tribunal had no good reason to take a different view.

(35) What is the impression made on the mind of the trial. The landlord's case was slipshod, his pleadings solovenly. At the outset the tenant's defense was struck out. In a trial of unequal strength and surprises the tenant was badly mauled. The trial ended leaving scars of injustice all aver. On the first ground of non-payment the tenant pleaded payment in cash The landlord admittedly did not issue rent receipts. He maintained an account which was roundly condemned by the Additional Controller as unbelievable. On the second ground of bona fide need the application did not disclose cause of action. On the third ground of non-residence there was no worth while evidence. The Additional Controller took a view favorable to the tenant, even though she ordered him to remain mute after the defense was struck out. The tribunal took adismetrically opposite view. I think the order of the Additional Ctontroller must be restored if justice is to be done. This is my conclusion.

(36) For these reasons the apppel is allowed and the order of ejectment dated April 25, W78 is set aside. The parties are left to bear their own costs throughout.


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