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Wahid HussaIn Vs. Nisar Ahmed - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberCivil Miscellaneous (Main) Appeal No. 1 of 1984
Judge
Reported inAIR1985Delhi457; 27(1985)DLT202; 1985RLR177
ActsDelhi Rent Control Act, 1978 - Sections 14(1); Slum Area (Improvement and Clearance) Act, 1956 - Sections 19
AppellantWahid Hussain
RespondentNisar Ahmed
Advocates: I.S. Mathur and; M. Ahmed, Advs
Cases ReferredKewal Singh v. Mt. Lajwanti
Excerpt:
.....under act of 1956 for instituting any suit or proceedings for obtaining any decree or order for eviction of tenant from premises in slum area is competent when order of eviction already obtained under section 14 (1) (e) - each ground of ejectment mentioned is a separate and distinct cause of action - can be considered to be same if their substance are identical - no bar in bringing petition for eviction if it is based on separate and distinct cause of action - on cause of action other than the ground contained in section 14 (1) (e) prior permission of competent authority has to be obtained - application for permission maintainable. - - applications under section 14(l)(e), thereforee, clearly fell within the protective umbrella of the new procedure in chapter iii-a. (6) the..........these grounds enumerate the circumstances forming the occasion for the landlord for the action for eviction. the cause of action is created by some act, neglect or default of the tenant. it is the cause which gives occasion for and forms the foundation of the petition for eviction of the tenant. the landlord will have to establish the whole of the material facts which are stated in any clause of the proviso to succeed and obtain an order of eviction. in other words for the grant of the relief of eviction certain distinct facts contained in clause will have to be established and proved. a perusal of each of the clauses show that they embrace distinct causes of action. the cause of action means every fact which will be necessary for the plaintiff to prove, if traversed, in order.....
Judgment:

S.S. Chadha, J.

(1) The short question of law raised in this petition is whether an application seeking permission of the Competent Authority under the Slum Areas (Improvement and Clearance) Act, 1956 for instituting any suit or proceedings for obtaining any decree or order for the eviction of a tenant from any premises in a slum area is competent when an order for eviction has already been obtained under section 14(l)(e) of the Delhi Rent Control Act, 1958.

(2) The facts are not in dispute. The petitioner filed, on or about August 7, 1980, a petition for eviction against the respondent for recovery of possession of the premises No. 504, Gali Matia Mabal Jama Masjid, Delhi (for short called premises in dispute) before the Rent Controller, Delhi on the ground under section 14(l)(e) read with section 25-B of the Delhi Rent Control Act, 1958 (hereinafter referred to as the 'Rent Act'). This petition was filed without obtaining the requisite permission from the Competent Authority under the Slum Areas (Improvement and Clearance) Act, 1956 (hereinafter referred to as the Slum Act). The respondent-tenant sought leave to contest the eviction petition and filed an affidavit staling the grounds on which he sought .to contest the application for eviction. The application for leave to defend was dismissed by the Rent Controller. Delhi and consequently an order for the recovery of possession of the premises in dispute was passed in the order dated February 17, 1981. The respondent filed a revision petition under proviso to section 25-B(8) of the Rent Act against the said order. The revision petition was dismissed in liming by this Court on May 20, 1981. The respondent filed a Special Leave Petition in the Supreme Court of India against the order dated May 20, 1981. It was registered as Special Leave Petition . No. 6324/ 1981 and was admitted on September 10, 1981. The dispossession of the respondent from the premises in dispute was stayed by the Supreme Court.

(3) The petitioner claims that the respondent is liable to ejectment on grounds other than the proviso (e) to sub-section (1) of section 14 of the Rent Act. The petitioner moved an application dated February Ii, 1981 under section 19 of the Slum Act for obtaining previous permission to institute eviction proceedings against the respondent from the premises in dispute on various grounds. The respondent contested the application and made an independent application dated July 12, 1982 staling that the application under section 19 of the Slum Act was not maintainable. Shri C.B. Verma, Competent Authority (Slum) by his order dated July Ii, 1983 observed that the permission of the Competent Authority under section 19 should precede the institution of suits/proceedings, for obtaining any decree or order or eviction of the tenant, and should not follow it. He felt that this is a mandatory requirement and the Competent Authority could not ignore it. He found that the proceedings for eviction of the tenant had been instituted and eviction order had been obtained and thereafter the application under section 19 of the Slum Act was filed and thus it was held as not maintainable.

(4) The petitioner filed an appeal against the said order under section 30 of the Slum Act. The appellate Authority by the impugned order dated September 15, 1983 dismissed the appeal on the ground that admittedly the petitioner had secured eviction order against the respondent and the purpose of application under section 19 of the Slum Act is to seek permission to institute proceedings for obtaining a decree or order for eviction of the tenant though on one of the grounds enumerated under the Rent Act. In these circumstances, the Financial Commissioner found that the Court below had not committed any illegality in dismissing the application under section 19 of the Slum Act justifying his interference.

(5) It is settled law that the Slum Act does not apply to an application brought under clause (e) of the proviso to sub-section (1) of section 14 of the Rent Act after the amendments made in the Rent Act, incorporating amongst others. Chapter III-A by means of Act 18 of 1976. The law was laid down by this Court in 'Smt. Krishna Devi Nigam and others v. Shyam Babu Gupta and others', : AIR1980Delhi165 . It has been finally settled by the Supreme Court in 'Ravi Dutt Sharma v. Rattan Lal Bhargava' : [1984]2SCR614 , wherein it has been ruled that it is clear from the new provision in the Amending Act that the procedure indicated therein was intended to have overriding effect and all procedural laws were to give way to the new procedure. Applications under section 14(l)(e), thereforee, clearly fell within the protective umbrella of the new procedure in Chapter III-A. In view of the procedure in Chapter III-A of the Rent Act, the Slum Act is rendered inapplicable to the extent of inconsistency and it is not, thereforee, necessary for the landlord to obtain permission of the Competent Authority under section 19(l)(a) of the Slum Act before instituting a suit/proceedings for eviction and coming within section 14(1)(a) of the Rent Act.

(6) The Competent Authority (Slum) in the impugned order has thus clearly committed an error of law that the permission of the Competent Authority under section 19 of the Slum Act should precede the institution of the suit/proceedings for obtaining any order or decree for eviction of the tenant. It is not necessary for the landlord to obtain permission from the Competent Authority before instituting proceedings for eviction on the ground contained in proviso (e) to sub-section (1) of section 14 of the Rent Act. The petitioner was not seeking permission to execute the order of eviction obtained under section 14(l)(a) as no permission is required. He was seeking permission to institute proceedings for obtaining another order for eviction of the tenant on grounds other than section 14(e), namely, (i) non-payment of rent (section 14(l)(a), (ii) caused or permitted to be caused substantial damages to the premises [section 14(l)(j),(iii) using the premises for a purpose other,.than that for which they were let [section 14(l)(c)] and (iv) bonafide requirement for carrying out substantial repairs which cannot be carried without the premises being vacated [section 14(1)(g)]. The Short question is whether it is permissible.

(7) A tenant against whom a decree or order of ejectment has been obtained is still a tenant within the meaning of the Slum Act. A Full Bench of this Court in Bardu Ram Dhanna Ram v. Ram Chander Khibru, 0043/1972 : AIR1972Delhi34 has held that keeping in view of the scheme of section 19 of the Slum Act, as made by this provision, the Court is of the opinion that the word 'tenant' includes a person in occupation of the tenancy premises even through a decree or order for eviction has been obtained against him. As the respondent was in fact a tenant, he would inspire of a decree/order for eviction passed against him, still be a tenant within the meaning of section 19 of the Slum Act and entitled to the statutory protection.

(8) Section 14 of the Rent Act says that notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court or controller in favor of the landlord against a tenant. It gives statutory protection to tenants but the protection is not absolute. There are inroads in the rights of the landlords to the enjoyment of the property. However, under the proviso the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the enumerated grounds. These are:

'SECTION 14(l)(a) : that the tenant has neither paid nor tendered the whole of the arrears of the rent legally recoverable from him within two months of the date on which a notice of demand for the 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 ; (b) that the tenant has, on or after the 9th day of June, 1952, sublet, assigned or otherwise parted with the possession of the whole or any part of the premises without obtaining the consent in writing of the landlord ; (c) that the tenant has used the premises for a purpose other than that for which they were let : (i) if the premises have been let on or after the 9th day of June, 1952, without obtaining the consent in writing of the landlord; or (ii) if the premises have been let before the said date without obtaining his consent; (d) that the premises were let for use as a residence and neither the tenant nor any member of his family has been residing therein for a period of six months immediately before the date of the filing of the application for the recovery of possession thereof, (e) that the premises let for residential purposes of 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 reason for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable residential accommodation ; Explanationn: For the purposes of this clause, 'premises let for residential purpose' include any premises which having been let for use as a residence are, without the consent of the landlord, used incidentally for commercial or other purposes ; (f) that the premises have become unsafe or unfit for human habitation and are required bona fide by the landlord for carrying out repairs which cannot be carried out without the premises being vacated; (g) that the premises are required bona fide by the landlord for the purpose of building or re-building or making, thereto any substantial additions or alteration and that such building or re-building or addition or alteration cannot be carried out without the premises being vacated ; (h) that the tenant has, whether before or after the commencement of this Act, built, acquired vacant possession of, or been allotted, a residence; (i) that the premises were let to the tenant for use as a residence by reason of his being in the service or enjoyment of the landlord, and that the tenant has ceased, whether before or after the commencement of this Act, to be in such service or employment; (j) that the tenant has, whether before or after the commencement of this Act, caused or permitted to be caused substantial damage to the premises; (k) that the tenant has, notwithstanding previous notice, used or dealt with the premises in a manner contrary to any condition imposed on the landlord by the Government or the Delhi Development Authority or the Municipal Corporation of Delhi while giving him a lease of the land on which the premises are situated; (1) that the landlord requires the premises in order to carry out any building work at the instance of the Government or the Delhi Development Authority or the Municipal Corporation of Delhi in pursuance of any improvement scheme or development scheme and that such building work cannot be carried out without the premises being .vacated.'

(9) These grounds enumerate the circumstances forming the occasion for the landlord for the action for eviction. The cause of action is created by some act, neglect or default of the tenant. It is the cause which gives occasion for and forms the foundation of the petition for eviction of the tenant. The landlord will have to establish the whole of the material facts which are stated in any clause of the proviso to succeed and obtain an order of eviction. In other words for the grant of the relief of eviction certain distinct facts contained in clause will have to be established and proved. A perusal of each of the clauses show that they embrace distinct causes of action. The cause of action means every fact which will be necessary for the plaintiff to prove, if traversed, in order to support the right to claim eviction. A separate and distinct set of facts have to be established under each clause through there may be some overlapping in one or two clauses. The material cause of action under each clause is clearly independent of each other. Each ground of ejectment mentioned is a different, separate and distinct cause of action. They can be considered to be same if substance they are identical.

(10) The Supreme Court had an occasion to consider the bar of Order 2, Rule 2 of the Code of Civil Procedure in 'Kewal Singh v. Mt. Lajwanti' : [1980]1SCR854 , in eviction proceedings. It was argued that the second application given by the plaintiff landlord for re-amending her plaint by inserting relief under section 14(l)(e) which she had given up on a prior occasion or which she had based her suit under section 14-A(l)was barred by the principles of Order 2, Rule 2 of the Code of Civil Procedure. It was ruled :

'A perusal of Order 2, Rule 2 would clearly reveal that this provision applies to cases where a plaintiff omits to sue a portion of the cause of action on which the suit is based either by relinquishing the cause of action or by omitting a part of it. 'The provision has, thereforee, no application to cases where the plaintiff bases his suit on separate and distinct causes of action and chooses to relinquish one or the other of them. In such cases, it is always open to the plaintiff to file a fresh suit on the basis of a distinct cause of action which he may have so reliquished.'

(11) Applying the aforesaid principles laid down by the Privy Council we find that none of the conditions mentioned by the Privy Council are applicable in this case. The plaintiff has first based her suit on three distinct causes of action but later confined the .suit only to the first cause of action, namely, the one mentioned in section 14-A(1) of the Act and gave up the cause of action relating to section 14(l)(e) and (f). Subsequently by virtue of an amendment she relinquished the first cause of action arising out of section 14-A(1) and sought to revive her cause of action based on section 14(l)(e). At the time when the plaintiff relinquished the cause of action arising out of section 14(l)(e) the defendant was not in the picture at all. thereforee, it was not open to the defendant to raise any objection to the amendment sought by the plaintiff. For these reasons, we are satisfied that the second amendment application was not barred by the principles of Order 2, Rule 2, Civil Procedure Code . and the contention of the learned counsel for the appellant must fail.'

(12) There is thus no bar to the bringing of a petition for eviction when the landlord basis his eviction petition on a separate and distinct cause of action. On a cause of action other than the ground contained in section 14(l)(e) of the Rent Act, prior permission of the competent authority has to be obtained. The authorities under the Slum Act have thus failed to exercise their jurisdiction, vested in them by law. The respondent continues to be a tenant within the meaning of section 19 of the Slum Act and can be proceeded against. The Court may in suitable cases decline to proceed on the ground of an abuse of the. process of the Court in obtaining successive eviction decrees after obtaining permission in the Competent Authority, but to say that the application for permission as not maintainable is wrong in law.

(13) The result is that the petition succeeds and the case is remanded to Competent Authority who shall determine the application on merits in accordance with law.

(14) There will be no order as to costs.


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