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Udai Lal Vs. Savitri Devi and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 58 of 1980
Judge
Reported in21(1981)DLT84
ActsCode of Civil Procedure (CPC), 1908 - Order 41, Rule 1(1); Delhi Rent Control Act, 1958 - Sections 14 and 39
AppellantUdai Lal
RespondentSavitri Devi and ors.
Advocates: L.D. Adlakha,; Mukul Rohatagi and; M.M. Sudan, Advs
Cases ReferredIn Vasudev Dhanjlbhai Modi v. Rajabhai Abdul Rehman and
Excerpt:
the case debated on whether the appellate court had the power to dispense with filing of more than one copy - it was ruled that with respect to the order 41 rule 1(1) of the civil procedure code, 1908, the appellate court had the power to dispense with filing of more than one copy of judgment, where two or more suits had been disposed off by common judgment - - brief facts are that jagdish parshad, predecessor of the respondents tiled an application for eviction of the appellant in this appeal as well in s. these objections in the three appeals were dismissed by the rent controller as well as by the rent control tribunal......of tenants occupying their properties. these objections in the three appeals were dismissed by the rent controller as well as by the rent control tribunal. hence this second appeal. (2) learned counsel for the respondent in all the three appeals has raised a preliminary objection that the appeals are barred by time. his objection is that in s.a.o. no. 58 of 1980 certified copies of the tribunal'3 order and the order of the rent controller have not been filed. he submits that certified copy of the order of the rent controller was not filed in all the appeals. on merits, learned counsel submits that the executing court cannot go behind i he decree and cannot take notice of the subsequent events as alleged by the appellant. (3) the objections by the three tenants were disposed of by a.....
Judgment:

Sultan Singh, J.

(1) This second appeal under Section 39 of the Delhi Rent Control Act, 1958 (hereinafter referred to as 'the Act') is directed against the judgment and order of the Rent Control Tribunal dated 15th January, 1980 confirming the order of the Controller dated 3rd November, 1979 dismissing the objections of the appellant-judgment debtor. Brief facts are that Jagdish Parshad, predecessor of the respondents tiled an application for eviction of the appellant in this appeal as well in S.A.O. Nos. 76 and 77 of 1980. An order of eviction was passed on 3rd June, 1976. Unfortunately the landlord Jagdish Pershad decree-holder died on 20th November, 1976. His heirs respondents took out execution wherein the appellant in all the three appeals filed objections against execution on the ground that the heirs were not entitled to execute the order of eviction and that since the passing of the eviction order the Central Government had withdrawn the general circular requiring the Government servants to vacate the allotted accommodation or to seek eviction of tenants occupying their properties. These objections in the three appeals were dismissed by the Rent Controller as well as by the Rent Control Tribunal. Hence this second appeal.

(2) Learned counsel for the respondent in all the three appeals has raised a preliminary objection that the appeals are barred by time. His objection is that in S.A.O. No. 58 of 1980 certified copies of the Tribunal'3 order and the order of the Rent Controller have not been filed. He submits that certified copy of the order of the Rent Controller was not filed in all the appeals. On merits, learned counsel submits that the executing court cannot go behind I he decree and cannot take notice of the subsequent events as alleged by the appellant.

(3) The objections by the three tenants were disposed of by a common judgment. Three appeals were also disposed of by a common judgment. Certified copy of the impugned order of the Tribunal dated 15th January, 1980 was filed by the appellant in S.A.O. Nos. 76 and 77 of 1980. Under the proviso to Order 41 rule 1(1) of the Code of Civil Procedure the appellate court has power to dispense with the filing of more than one copy of the judgment where two or more suits have been disposed of by common judgment. The three appeals before the Rent Control Tribunal were disposed of by a common judgment dated 15th January, 1980 and thereforee I dispense with the filing of the certified copy of the Tribunal's order in S.A.O. No. 58 of 1980.

(4) With regard to the certified copy of the order of the Rent Controller dated 3rd November, 1979 it is admitted that copy has not been filed in any of the three appeals. Rule 2 (b),Chapter 1-A of Vol. V of the Rules and Orders of the Punjab High Court as applicable to this court requires that a memorandum of appeal in case of second appeal shall be accompanied by a copy of the judgment of the court of first instance unless the appellate court dispenses therewith. The appellant filed an application staling that certified copies of the order of the trial court and the order of the Rent Control Tribunal were applied, that the same were not ready and thereforee he may be exempted from filing the same for the purpose of admission and stay of his eviction. The Admission Bench on 20th February, 1980 directed the appellant in all the three appeals to file certified copies within limitation. Although it was admitted by the appellant in all the three appeals that certified copy of the order of the Rent Controller was applied for but the same has not been filed. Learned counsel for the appellant prays that the appellant may be exempted from filing the certified copy of the order of the Rent Controller but no ground for the grant of exemption has been disclosed. As the certified copy of the order of the court of first instance as required by the said rule has not been filed it must be held that there is no proper second appeal and on this ground alone all the three appeals are liable to be dismissed.

(5) On merits learned counsel for the appellant submits that subsequent events may be taken into consideration and the appellant-tenant be granted relief. In other words, he says that the relief to the respondents who are the heirs of the original decree holder should not be granted and relief should be moulded as far as the appellant-tenant is concerned. Learned counsel for the respondent however submits that the heirs of the landlord who had obtained an order of eviction against his tenant are entitled to execute the same after his death. This view is supported by Vas Dev v. S. Sohan Sinqh and others, 1968 D.L.T. 492 and Arjan Dass v. Madan Lal, 1971 R.C.J. 3. Learned counsel further submits that the subsequent events may be taken into consideration. Counsel for the respondent on the other hand, submits that the executing court cannot go behind the decree. The Supreme Court in Syed Asadullah Kazmi v. The Additional District Judge, Allahabad and others, : [1982]1SCR77 has held that once an order of eviction has become final the same cannot be re-opened in execution proceedings. In that case the order of eviction of the tenant from a part of the premises become final by an order of the Supreme Court. The landlord died before obtaining possession. It was held that the proceedings cannot be re-opened on that ground at the instance of the tenant as the order had already become final. It has been further observed that in such circumstances subsequent events could not be taken into consideration. In Vasudev Dhanjlbhai Modi v. Rajabhai Abdul Rehman and others, 1970 R.C.J. 716 and Sita Ram v.Jai Babu 1973 R.L.R. 509 it has been held that the executing court cannot go behind the eviction order between the parties or their representatives, that it must take the order according to its tenor, and cannot entertain any objection that the order was incorrect in law or on facts, or that the owner's need has been otherwise fulfillled. I am, thereforee, of the opinion that the present three appeals are barred by time. On merits also the appellant in the three appeals has no case. All the three appeals, S.A.O. Nos 58, 76 and 77 of 1980 arc, thereforee, dismissed leaving the parties to bear their own costs.


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