Arjan Singh vs Sada Nand and Another

J.V. Gapta, J.—This is tenant''s revision petition against whom the ejectment application was dismissed by the Rent Controller, but was allowed in appeal.

Sada Nand, landlord, sought the ejectment of his tenant Arjan Singh, from the shop, in dispute, primarily on the ground of subletting. It was alleged that he had sublet the premises to Sanwalia, Respondent No. 2, his real brother. In the written statement filed on behalf of the tenant, it was pleaded that earlier also on this very ground ejectment was sought by the landlord but was declined by the Rent Controller vide order dated February 27, 1973, Exhibit R. 1. Appeal against the said order of the Rent Controller was dismissed by the Appellate Authority vide order dated October 10, 1974 certified copy, Exhibit R. 2. It was further pleaded that there was no subletting. The alleged sub-tenant was his real brother. The eviction application (out of which the present revision petition has arisen) on the same cause of act on was net maintainable. The learned Rent Controller found that earlier also the instant ground was taken by the landlord for the ejectment of the tenant, but had failed and, therefore, the ejectment application was not maintainable. It was, also, found that Arjan Singh, tenant, was in actual possession of the shop, in dispute, and that the possession of his brother, Sanwalia, was that of a licensee and not that of a subtenant. Consequently, the ejectment application was dismissed. In appeal, the learned Appellate Authority reversed the said finding of the Rent Controller on the ground that the principles of ret judicator did not apply to the proceedings under the Rent Act. It also held that the ground of subletting by the tenant in favour of his brother was proved. As a result, the appeal was allowed, the order of the Rent Controller rejecting the ejectment application was set aside and the eviction order was passed against the tenant. Dissatisfied with the same, he has come up in revision to this Court.

The learned Counsel for the Petitioner contended that Section 14 of the Haryana Urban (Control of Rent and Eviction) Act, 1973, (hereinafter called the Act) provides that the Controller shall summarily reject any application under Sub-section (2) or (3) of Section 13 which raises substantially the issues as have been finally decided in any former proceedings under this Act. Thus, argued the learned Counsel, the question of subletting, as alleged, was already decided vide order, Exhibit R. 1, by the Rent Controller and vide order certified copy, Exhibit R. 2, by the Appellate Authority. Thus, contended the learned Counsel, the approach of the Appellate Authority was wholly wrong and misconceived.

After hearing the learned counssl for the parties, I find force in the contention raised on behalf of the Petitioner.

The very ground of subletting taken by the landlord now, was taken by him earlier also, but was found against him by the Rem Controller vide, Exhibit R. 1. The said order passed by the Rent Controller was maintained, is appeal, by the Appellate Authority, vide Exhibit R. 2. That being the position, the application filed by the landlord was liable to be rejected summarily in view of the provisions of Section 14 of the Act.

Faced with this situation, it was contended on behalf of the landlord that new cause of action had arisen to the landlord to evict the tenant because Sanwalia, Respondent No. 2, had taken some loan from the Bank and, therefore, it amounted to the subletting of the demised premises in his favour by the tenant I do not find any merit in this contention. The mere taking of the loan by Sanwalia, Respondent, does not prove that he is a sub-tenant on the premises, in question. It has been found as a fact by the Kent Controller that the tenant was in occupation of the shop, in dispute. Since he is in occupation of the premises, he could not be ejected therefrom on the ground of the alleged subletting.

Consequently, this revision petition succeeds and is allowed. The order of the Appellate Authrity is set aside and that of the Rent Controller dismissing the ejectment application is restored with costs.