Sultan Singh, J.
(1) This appeal on behalf of the landlady under Section 39 of the Delhi Rent Control Act, 1958 (hereinafter called 'the Act') is directed against the judgment and order dated 23rd December, 1977 of the Rent Control Tribunal dismissing her eviction application confirming the order dated 15th October, 1975 of the Additional Controller.
(2) To appreciate the questions involved in this appeal, it is necessary to recall the history of the previous litigation regarding the suit premises. One Shri Dayal Sharma was owner-landlord of premises No. 6391 at Plot No. 65-A, Kamla Nagar, Delhi. Sarwan Singh, respondent No. 1 was her tenant on a monthly rent of Rs. 17.00 . On 27th September, 1965 Shri Dayal Sharma filed an eviction application against Sarwan Singh on the grounds of eviction mentioned in clauses (b), (d) and (h) of the proviso to sub-section (1) of Section 14 of the Act alleging that he had sub-let the premises; he has built or acquired suitable accommod 1ation at C-3, Rana Partap Bagh, Delhi ; that he has not been residing in the premises for the last more than six months. Shri Dayal Sharma sold the suit property to e appellant Smt. Brahama Kumari by means of a registered sale deed dated 8th October, 1965. The appellant made an application under Order 1 rule 10 of the Code of Civil Procedure (hereinafter called 'the Code') in the said eviction case for being substituted as a party or in the alternative for being substituted as she had purchased the suit property. After some hearings, it was stated on her behalf that she would file a separate eviction ease and thereforee her application under Order 1 rule 10 of the Code be dismissed as withdrawn and it was dismissed as such vide order dated 11th March, 1966. The Additional Controller by another order of the same date also passed an order dismissing the eviction application of Shri Dayal Sharma holding that be no longer was having any interest as landlord in the premises and thereforee would not be entitled to an order of eviction. The present appellant on 29th March, 1966 thereforee filed an eviction application against the respondents, namely, Sarwan Singh and Babu Singh on the grounds mentioned in clauses (b), (d) and (h) of the proviso to sub-section (1) of Section 14 of the Act. The respondents filed their written statements but the eviction application was dismissed as withdrawn with permission to file a fresh application on the same cause of action. As notice of eviction had not been served by the appellant, she was thereforee permitted to file a fresh eviction application.
(3) On 17th February, 1968 the appellant again filed the eviction application on the same grounds mentioned in clauses (b), (d) and (b) of the proviso to sub-section (1) of Section 14 of the Act against both the respondents. In his written statement dated 10th April, 1968, respondent No. 1 pleads that he ceased to be the tenant of Shri Dayal Sharma, predcessor-in-interest of the appellant in 1958, that he is not the tenant under the appellant, that Babu Singh, respondent No. 2, became a tenant under Shri Dayal Sharma in 1958, that the eviction application is barred under Order 2 rule and Order 23 rule 1 of the Code and other provisions of law. Respondent No. 2 in his written statement pleads that respondent No. I shifted to his house at Rana Partap Bagh and also surrendered his tenancy in 1958 to Shri Dayal Sharma, that possession of a portion of the tenancy premises was also surrendered to the landlord Shri Dayal Sharma, that he became a tenant under Shri Dayal Sharma in 1958 on a monthly rent of Rs. 30.00 , that no receipt for payment of rent was granted to him. The Additional Controller by his order dated 15th October, 1975 held that the eviction application was barred on account of the dismissal of the earlier eviction application filed by Shri Dayal Sharma and also on account of the withdrawal of her application under Order I rule 10 of the Code by the appellant. On merits, the Additional Controller held that respondent No. I never ceased to be a tenant in the demised premises, that he had assigned or otherwise parted with the possession of the premises to Babu Singh without the written consent of the appellant, that respondent No. 1 had acquired another house at Rana Partap Bagh and had not been residing in the suit premises for more than six months. In other words, the Additional Controller held that the appellant had proved all the three grounds of eviction mentioned in clauses (b), (d) and (h) of the proviso to sub-section (1) of Section 14 of the Act. On appeal, the Rent Control Tribunal held that the eviction application was not barred on account of the dismissal of the previous eviction application and withdrawal of application under Order I rule 10 of the Code on 11th March, 1966. On merits, the Tribunal, however, held Babu Singh, respondent No. 2, to be a tenant in the suit premises and hence dismissed the eviction application. Hence this second appeal. Respondents also filed cross-objections, C.M. No. 833 of 1978, alleging that the present eviction application is barred in law.
(4) Learned counsel for the appellant contends that the Additional Controller after appreciating the evidence on record rightly held that Sarwan Singb never ceased to be a tenant, that he had assigned or otherwise parted with the possession of the premises to respondent No. 2 without the written consent of the appellant, and that there were no compelling reasons for the Tribunal to upset the said finding. His further contention is that the Tribunal approached the matter from a wrong point altogether and on the materials on record, it had no justification to reverse the findings of the Additional Controller that Sarwan Singh had assigned or otherwise parted with the possession of the premises to Babu Singh, and that Babu Singh was not a tenant. He further says that the Tribunal oberlooked important evidence on record and the findings returned by the Tribunal are perverse, contrary to law and based on no evidence. Learned counsel for the respondents submits that there is no substantial question of law in the appeal and the same is thereforee not maintainable, that the finding to the effect that respondent No. 1 was not a tenant and respondent No. 2 is a tenant is a finding of fact as returned by the Tribunal and the same cannot be interfered with by this court in second appeal. He further submits that the eviction petition out of which this second appeal has arisen was barred in law on account of the dismissal of the previous eviction application filed by Shri Dayal Sharma and the withdrawal of her application under Order I rule 10 of the Code by the appellant on 11th March, 1966. Thus there are two crucial questions for decision in this case : (1) whether Babu Singh is a tenant in the suit premises and (2) whether the present eviction application was barred in law.
(5) It is now well settled that a finding reached by the first appellate court on questions of fact cannot be interfered with by this court in second appeal, but if it is shown that in reaching the said finding a mistake of law is committed by the appellate court or it is based on no evidence or is such as no reasonable man can reach, the High Court can interfere in second appeal (See : Mattulal v. Radhe Lal, : 1SCR127 ). Further in Sarju Pershad Ramdeo Sahu v. Jwaleshwari Partap Narain Singh and others, : 1SCR781 it is observed as under regarding appreciation of evidence by the appellate court in cases where the finding of fact is based on conflicting evidence:
'THErule is-and it is nothing more than a rule of practice-that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of the witnesses, then unless there is some special feature about the evidence of particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate court should not interfere with the finding of the trial Judge on a question of fact...... The duty of the appellate court in such cases is to see whether the evidence taken as a whole can reasonably justify the conclusion which the trial court arrieved at or whether there is an element of improbability arising from proved circumstances which in the opinion of the court outweighs such finding'.
(6) In Gopi Tihadi Gokhei Panda and another, : AIR1954Ori17 it is observed, 'if the evidence taken as a whole supports the view taken by the trial court, the appellate court should not, except for very compelling reasons set aside that finding even if it takes a different view of the evidence'. In Trailakyanath Maity and another v. Provabati Santra and others, : AIR1974Cal261 it is observed, 'The first appellate court, though a final court offacts will not normally set aside the finding of facts made by the trial court on consideration of evidence unless there are compelling circumstances to do so'. In Shakila Banu v. Gulam Mustafa, : AIR1971Bom166 it is held that the opinion of the trial court Judge about credibility of witness should not be ordinarily disturbed in appeal and that the -appellate court should not reappreciate oral evidence and arrive at finding contrary to those of the trial Judge. It is further observed that if the lower appellate court ignores law relating to review of oral evidence by court of appeal, it commits substantial error so as to render its finding liable to be set aside in second appeal.
(7) In the light of the said observations by various courts, it seems to me that the Tribunal was not justified in reversing the findings of fact returned by the Additional Controller to the effect that respondent No. I Sarwaa Singh never ceased to be.a tenant and that he had assigned or otherwise parted with the possession of the premises to respondent No. 2 without obtaining the consent of the appellant. The Additional Controller after referring to the entire evidence on record came to the conclusion that respendent No. 1 bad not been in occupation of the disputed premises since 1958, that there was no satisfactory evidence on record to show that respondent No. 1 had been Realizing rent from respondent No. 2 as sub-tenant, that respondent No. 2 has been in occupation and possession of the suit premises since 1958. He, thereforee, came to the. conclusion that respondent No. 1 assigned or parted with possession of whole of the disputed premises in favor of respondent No. 2. The crucial question before the Addintional Controller was whether respondent No. 1 handed over the possession premises to previous owner Shri Dayal Sharma in 195 x who is alleged to have inducted respondent No. 2 as tenant in the entire premises which were with respondent No 1 except the garage. Shri Dayal Sharma as A.W. I has specifically stated that he never inducted respondent No. 2 as a tenant in the premises in 195S or any time thereafter. He also staled that his attorney Hari Chander Malhotra. R.W.6 was his rent collector who used to collect rents from the tenants of the suit property from 1940 to 1965 i.e. up to the date when the property was sold by him to the present appellant. He further stated that respondent No. I was his tenant at Rs 17.00 per month who left the premises in 1958 and shifted to his house in Rana Pratap Bagh along with his family, that respondent No. I handed over the possession of the premises to respondent No. 2 without his permission, that he had filed an eviction application against respondent No. I and had sold the property to the appellant during the pendency of the eviction case. In cross-examination the previous lardlord admitted that respondent No. 1 shifted to Raaz Pratap Bagh and that he surrendered one garage in his tenancy to him hit the rent remained to be Rs. 17.00 p.m., as before. He had also deposed that his clerk Hari Chander Malhotra used to realise rent against rent receipts. The rent collector Hari Chander Malhotra as R.W.6 was examined by the respondents. He stated: that he was the rent collector of Shri Dayal Sharma, that he realised rents of the property up to the date of its sale, that respondent No. 1 was a tenant at Rs. 17.00 per month, that, respondent No. 1 vacated the premises in 1958 as he had shifted to his house at Rana Pratap Bagh. that respondent No. 1 had handed over the possession of, premises to shri Dayal Sharma in 1958 and that Shri Dayal Sharma inducted respondent No. 2 as a tenant in the entire premises which were with respondent No. 1 except the gage. In cross-examination, however, this rent collector admitted that he was not present when respondent No. 1 is alleged to have taken respondent No. 2 to the owner Shri Dayal Sharma in 1958 for giving the dispuled pemises on rent to respondent No. 2 that negotiations regarding creation of tenancy in favor of respondent No. 2 had not taken place in his presence He further admits in cross examination that the rent receipts at Rs 17.00 per month were being issued uptill 1965 by him in favor of respondent No. 1 although rent was paid by respondent No. 2 after he had occupied the disputed premises. As regards the creation of tenancy in favor of respondent No. 2 it is not the case of respondent No 2 that anybody else was present when the alleged tenancy in his favor was created. The rent collector Hari Chander Malhotra was not present as admitted by him in cross-examination. Respondents I and 2 are interested persons. The Additional Controller after referring to these oral statements of the parties and other evidence came to the conclusion that respondent No. 2 was never inducted as a tenant by Shri Dayal Sharma. It appears to me that respondents from the very beginning took a false plea and they have been shifting their defense from time to time and the Tribunal has not apprecated the reasoning given by the Additional Controller in coming to the said findings. The Tribunal, it appears, has ignored important evidence on record and the findings are perverse. Hari Chander Malhotra, R.W.6 rent collector in cross-examination admitted that he was not present at the time of alleged creation of tenancy in favor of respondent No. 2 as observed by the Controller There was thus no independent evidence to support theory of tenancy in favor of respondent No. 2 in 1958 when respondent No. 1 shifted at any time thereafter. The Tribunal has also ignored and not taken into consideration the stand taken by the respondents in the documentary evidence on record. The present appellant on 25th December, 1967 sent a notice (Ex. A.4) to Sarwan Singh alleging that he had sublet the tenanted premises to Babu Singh without the written consent, that he had shifted to his house at C-3, Rana Pratap Bagh, Delhi, that he has not been occupying the premises. Shri Sagar Chand Kalra, Advocate, sent a reply dated 22nd January, 1968(Ex.A.8) on behalf of the two respondents, wherein it is alleged that before Sarwan Singh left the suit house and shifted in his own house at Rana Pratap Bagh, Delhi in 1958, he proposed to the landlord Shri Dayal Sharma that Babu Singh would be tenant in the premises except the garage on payment of Rs. 30.00 per month, that Babu Singh would be paying Rs. 30.00 as rent but would be getting receipt for Rs, 17.00 per month only and that too in the name of Sarwan Singh. In this reply it is further stated that thus Babu Singh became a tenant, that he was paying rent every month and getting receipts every month as mentioned already i.e. in favor of Sarwan Singh. After this reply by Shri Sagar Chand Kalra, Advocate, the written statement on behalf of the two respondents dated 16th May, 1966 (Ex.A.11) duly signed and verified by both of them was also filed by him wherein the defense as taken in the reply notice dated 22nd January, 1968 was also taken. Para 16 of the written statement dated 16th May, 1966 reads as under :
'16:PARAL6OFthe petition is incorrect and thereforee denied. As stated above respondent No. 1 took the premises consisting of 2 rooms, a kitchen, a bath, and a garage together with latrine on the ground floor in 1942 on payment of Rs. 17.00 per month as rent. He built his own house, in February. 1958 and shifted to his own house on 22-2-1958. On the recommendations of respondent No. 1, the landlord consented to make respondent No. 2 his tenant on the following terms : (a) The respondent will surrender the garage in his tenancy. (b) The respondent No. 2 shall be a tenant qua remaining portion of the premises. (c) The respondent No. 2 will pay Rs. 30.00 per month as rent but will get a receipt of Rs. 17.00 per month. (d) Respondent No. 1 will be guarantor for the rent. (e) The receipt will be in the name of respondent No. 1. Since the respondent No. I shifted to his own house, the respondent No. 2 occupied the premises as stated above. The respondent No. 2 has since then been residing in the premises with his family to the knowledge of Shri Dayal the landlord who has been receiving rent from the respondent No. 2 with the said knowledge. The petitioner is estopped from denying the tenancy of respondent No. 2 and has waived his rights to file this present suit.'
(8) As already stated, the earlier eviction case filed by the appellant was withdrawn with permission to file a fresh proceeding on the same cause of action In the present eviction proceedings, the two respondents filed their separate written statements. Respondent No. 1 denied the tenancy besides his other pleas. Respondent No. 2, however, in his written statement pleaded a different story and it is necessary to reproduce para 16 of the present written statement dated 4th March, 1968 :
'16:Para 16 of the petition is wrong and is denied. The replying respondent No. 2 is a tenant since February, 1958 when respendent No.1shifte to his newly built house on 2.2.1958. On the recommedation of respondent No. 1, the landlord consented to make respondent No. 2, who is a close relation of respondent No. 1, his tenant on the following, terms:- a) That the respondent No. 1 will surrender the premises in his tenency to the landlord which included, besides the portion occupied now by respondent No. 2, a garage. b) That the respondent No. 2 shall be a tenant under the landlord qua the portion consisting of two rooms, a kitchen with bath and W.C. common on the ground floor on a monthly rent of Rs. 30.00 . c) The respondent No. 1 will be guarantor for the rent. d) The respondent No. 2 will not be given any receipt. e) The garage that formerly formed the part of the tenancy of respondent No. 1 remained with the landlord who let it out to one Shri Sant Ram. Since the respondent No. 1 shifted to his own house, the respondent No. 2 occupied the premises as a tenant on the above- mentioned terms, the respondent No. 2 has since then been residing in the premises with his family to the knowledge, of Shri Dayal the landlord who has been receiving rent from the respondent No. 2, under the abovementioned terms. The petitioner is estopped from denying the tenancy of respondent No. 2 as the predecessor-in-interest of the petitioner had waived his right to file the present petition on the grounds mentioned in the petition, and had by his conduct made this respondent No. 2 belive that he was a tenant under landlord. thereforee. the present petitioner is also estopped from filing the present petition'.
(9) In this written statement the respondent as omitted his admission container in the previous written statement that the receipt was to be issued in the name of respondent No. 1. On the other hand he pleads that no receipt was to be given to respondent No.2. The alleged contract of tenancy is of 1958. The earlier written statement was filed in 1966 and the present written statemnte was filed in 1968. From the earlier written statement it is apparent that the receipts of rent relating to the suit premises were issued in the name of respondent No.1 from 1958 to 1965. When the receipts were containuing to be issued to respondent No. 1 as admitted by the respondents, I fail to appreciate how respondent No.1 ceased to be a tenant under the previous landlord and howrespondent No. 2 became a tenant under him. The respondents have now come forward with the plea that no receipts were issued after 1958. No reliance can be placed on the statements of these respondents in view of the saif documentary evidence ignored by the of these respondents in view of the said documentary evidence ignored by the
(10) The Tribunal has observed that previous owner did not take any action for seven years against Sarwan Singh and Babu Singh when Babu Singh was inducted in the premises. To my mind, this is no grond. The landlord was not Realizing the rent himself. The rent as already stated, was being realised by his rent collector If he has not taken any action availble to him under Section 14(1)(b) of the Act from 1958 to 1965 it does not mean that a tenancy has been created or is deemed to have created. In fact the previous landlord, as already stated; had filed an eviction case on 27th September, 1965 which was dismissed by the Additional Controller on the ground that he creased to be a landlord after the sale of the property in favor of the appellant Further, the Tribunal his observed that at the times of Surrender of garage in 1958, rent was not reduced, and thereforee there must have been some new arrangement between the parties. The Tribunal is of the view that if rent is not reduced after the Surender of the garage the landlord must have agreed for the tenancy in favor of respondent No.2 and issue of receipt in favor of respondent No.1. The monthly rent is a mearge sum of Rs.17.00 at the time of Surender of garage in 1958. The landlord let out the garage to somebody and agreed with respondent no.1 to let him continue as a tenant at the same old rent of Rs. 17.00 per month with respect to the remaining premises. I may mention that the original tenancy in favor to the respondent No. 1 was created in 1942 at Rs.17.00 per month, and in 1958 also the rent remained Rs. 17.00 . Had there been any other contract of creation of tenancy between the previous landlord and the respondent No 2, the landlord would have increased the rent and created the tenancy in favor of respondent No 2 directly? No reason is forthcoming why no receipt was agreed to be issued in favor of respondent No. 2 when the rent: as alleged was increased from Rs.17.00 to Rs. 30.00 per month. Again the Tribunal observes that Swaran Singh, respondent No. 1, would not have surrendered the possession of garage without taking any advantage.What is the question of advantage? He did not like to keep the garage with him and, he thereforee surrendered the same. to the previous landlord. If there was any contract of letting, respondent No.1 would have pressed the landlord to issue the receipt in favor of respondent No. 2. The Rent Control Tribunal in its judgment has observed, 'In the previous case this , wilness (Shri Ddyal Sharma) admitted that be had accepted Babu Singh as a tenaat'. The previous statement of Shril Dayal Sharma is Ex R.1.I have gone through this statement and I do not find anywhere that Shri Dayal Sharma ever accepted Babu Singh as a tenant. Reading the whole statement, I am of the view, that Babu Singh was never accepted as a tenant. The portion 'A' to 'A' in Ex. R.1 i.e.the previous statement reads, 'When I sold the building Sarwan Singh, respondent No. 1, was not my tenant'. These words simply mean that on the sale of the property respondent No.1 ceased to be his tenant. The previous landlord in his statement further stated, 'When Sarwan Singh went away he brought his relative Babu Singh in the suit premises............ I never gave consent in writing to Sarwan Singh to sublet the premises to Babu Singh. At the time of the sale of the same. I informed the petitioner that Sarwan Singh had gone away and he had kept Babu Singh in the suit premises and I have filed a petition for eviction' Thus I am of the view that the Tribunal was not justified in reading the statement of the previous landlord that he had accepted Babu Singh as a tenant.
(11) Next the Tribunal has drawn the presumption against the appellant on the ground that the counterfoils of the rent receipts issued in favor of respondent No. 1 from 1958 to 1965 have not been produced. It is immaterial in view of the previous written statement of the respondents dated 16th May, 1966 where they admitted that the receipts were agreed to be issued in favor of respondent No. 1. As already stated, the respondents took the contradictory pleas in the two written statements. They earlier admitted the receipts in favor of respondent No 1 but denied the same in the written statement to the present proceedin gs. The Tribunal has also taken into consideration certain entries in the records of the Municipal Corporation of Delhi copy whereof is Ex R.W.4/1. The effect of the contents of this document is that Babu Singh is occupying a portion on the ground floor and the rent is Rs.30.00 This purports to be for the year 1962. Itas not been proved who is the author of this record. No evidence has been produced on behalf of the respondents how this entry was made. It appears that this entry was in the interest of Babu Singh as he was in occupation of the suit house. He might have given this information to the Corporation. The landlord was never a party to such an entry and thereforee it seems to me that the entry in the municipal record cannot be used against the .appellant. As already stated, the writer of the entry has not been produced and the source of information has not been given and such entry does not appear to be relevant under Section 35 of the Indian Evidence Act. In Munna Lal v. Prakash Dev, 1951 (53) Pun LR 169 it was observed that the rental value in the municipal house lax assessment register was not relevant for purposes of fixation of standard rent under the Rent Act. It seems to me that the entry in the Corporation record is no evidence against the appellant or the previous landlord when neither of them had any notice of the said entry.
(12) In Nur Ahmad Khan and another v. The Municipal Committee, Amritsar, 1924 Lah 51 I it is observed that an entry in register that a well is public is no evidence against owner when owner had no notice of the entry. In Jagan Nath v. Smt. Shanti Devi. 1976 R C.R. 341, the Punjab & Haryana High Court has held that the municipal record is no proof of relationship of landlord and tenant. In that case respondent was shown as tenant in municipal assessment record at a monthly rent of Rs. 40.00 and the reliance was placed on behalf of the tenant but the High Court rejected the. same. Similarly, in the present case the respondents rely on the said entry in support of their plea that Babu Singh was a tenant at Rs. 30.00 per month in the suit premises
(13) Lastly, it is urged on behalf of the respondents that the real tenant was respondent No. 2 and respondent No 1 was only a benami tenant. It is submitted that the respondents made an application during the pendency of proceedings before the Additional Controller for permission to amend the written statement to take the plea of benami tenancy. This application for amendment of the written statement was rejected .by the Additional Controller on the ground that a new plea could not be allowed to be pleaded. The Tribunal, however, in its judgment observes that the Controller ought to have allowed this amendment. It seems to me that the respondents have been changing their defense pleas from time to time and came forward with the pleas which suited them at the relevant time. Initially, they pleaded that Babu Singh became a tenant while receipts were got to be issued in favor of respondent No. 1. Next they pleaded that no receipts were issued since 1958 and Babu Singh became a tenant. Finally they intended to plead that respondent No. 1 was a benami tenant while the real tenant was Babu Singh. I have heard the learned counsel for the respondents on this aspect. I do not find that there is any substance in the plea of benami tenancy. There is no evidence on record. Learned counsel for the respondents on the evidence on record stresses that it must beheld that the real tenant in the premises is Babu Singh and not Sarwan Singh. There is no merit in this submission and I reject the same.
(14) It is admitted that respondents I and 2 were initially friends, that respondent No. 1 shifted in 1958 and respondent No. 2 occupied the premises. The real reason of the collusion between the two respondents appears to be on account of the fact that in 1963 daughter of respondent No. 1 was married to the son of respondent No. 2 and thereforee they have taken the plea that respondent No. 2 became a direct tenant under the landlord in 1958. Learned counsel for the respondents further submits that his admission in the previous written statement must be taken as a whole meaning thereby respondent No. 2 must be deemed to be a tenant if his admission to the effect that the receipts were issued in favor of respondent No. 1 even after 1958 is taken note of by this court. The pleadings in the two written statements ore noticed and with the change of the defense one can determine to what extent the defense raised by the respondents is true or false. Reading the two written statements and the conduct of the respondents. I have no doubt that the respondents came forward with a false plea. Thus it seems to me that the approach of the Rent Control Tribunal in reviewing the evidence on record was not inaccordance with law and the Tribunal fell in error in ignoring the very important aspects of the oral and documentary evidence on record, as discussed by the Controller The finding returned by the Tribunal to the effect that Babu Singh, respondent No. 2, became a tenant in 1958 is perverse and based on no evidence. I am thereforee of the view that respondent No. I never ceased to be a tenant, that he continued to be a tenant even after the sale of the property, that he shifted to his own house and assigned or otherwise parted with the possession of the premises to respondent No. 2 without the consent of the landlord. In other words, the appellant is entitled to an order of eviction on all the three grounds mentioned in clauses (b), (d) and (h) of the proviso to sub-section (1) of Section 14 of the Act.
(15) The last question for determination is whether the present eviction application is barred by any provision of law. Learned counsel for the respondents has not brought to my notice any provision under which the eviction petition is barred. He, however, relies upon Order 23 rule I and Section 11 of the Cede. His argument is that the appellant's application under Order 1 rule 10 of the Code after the purchase of the property was dismissed as withdrawn without any permission to file a fresh application and thereforee the present eviction application is barred I do not agree. The appellant is debarred only from filing a fresh application under Order I rule 10 or Order 22 rule 10 of the Code if he had previously withdrawn such anapplication without permission, In the present case the appellant specifically made the statement that she would take eviction proceedings separately and thereforee she withdraw her application for being imp leaded as a party to the eviction proceedings initiated originally by the previous landlord. Learned counsel further submits that the previous eviction application was dismissed by the Controller and thereforee the present eviction proceedings by the appellant-purchaser are barred under the principles of res-judicata. I may mention that the previous eviction case filed by the previous landlord was dismissed on the ground that he ceased to be the landlord after the sale of the property. The contention of the counsel is that the previous landlord or the appellant ought to have continued the first eviction application. It seems to me that the Additional Controller by his order dated 11th March, 1966 dismissed the eviction application of the previous landlord aftersale on the basis of a judgment reported as Madan Lal v.Harkishan Lal, 1966 P.L.R. 14. It appears that this court in Roshan Lal and others v. Manmohan Chopra, 1971 R.C.R. 339 did not approve of the said judgment on the basis of a Supreme Court judgment reported as Ramchander Narsey and Co. v. Wamarao V. Shenoy, 1969 R.C R. 398. It seems to me that there has never been trial on merits and as such the dismissal of the previous application filed by the previous landlord on the ground that he ceased to be a landlord would not be a bar to the present eviction proceedings. It seems to be correct that if a proceeding is instituted on a cause of action decree must follow. But if the court dismisses a case on the ground that the relationship of landlord and tenant has ceased to exist on account of sale of the property, it cannot be said that the purchaser can never file a proceeding for eviction of a tenant, if he has not been imp leaded in the previous eviction proceedings or leave to continue eviction proceedings has neither been sought nor granted.
(16) Thus I am of the view that the present eviction proceedings are not barred on account of the two orders dated 11th March, 1966 in the eviction proceedings filed by the previous landlord.
(17) I am thus of the view that the evidence taken as a whole reasonably justifies the conclusion arrived at by the Additional Controller on the various questions of fact. The Tribunal was in error in reversing the finding of fact when there was no compelling reason to reverse the same. The Tribunal also ignored important evidence on record discussed by the Controller while reversing the findings of fact. The Supreme Court in Smt. Sonawati and others v. Sri Ram and others, : 1SCR617 , Radha Nath Seal (dead) by his legal representatives v. Haripada Jana and others, 1971 Sc 1049 and Damadilal and others v. Parashram and others, 1976 Sc 2229 has laid down that High Court in second appeal may reverse a finding of fact if the first appellate court has ignored, overlooked or failed to consider material part of evidence in arriving at its conclusion.
(18) The appeal is, thereforee, accepted setting aside the impugned order dismissing the eviction application. An order of eviction' is passed under Section 14, (d) and (h)of the Delhi Rent Control Act, 11958 in favor of the appellant against the respondents with costs.
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