Har Gobind vs Smt. Shanti Devi and Another

J.V. Gupta, J.—This revision petition is directed against the order of the Appellate Authority dated January 27, 1989, whereby the order of the Rent Controller dated September 21, 1988, declining ad interim injunction under Order XXXIX rules I and 2 of the Code of Civil Procedure, (hereinafter called the Code), was set aside and the tenants were restrained from making any construction on the premises in question, till the final disposal of the application for ejectment

The landlady Shrimati Shanti Devi filed the ejectment application before the Rent Controller. Therein, she also moved an application purporting to be under Order XXXIX rules l and 2 of the Code, restraining the defendants from raising any construction on the demised premises. The application was contested on behalf of the tenants. The learned Rent Controller found that neither the landlady had a prima facie case, nor there was any balance of convenience in her favour and, thus, declined the ad interim injunction However, on appeal, the learned Appellate Authority found that the landlady had a prima facie case for the purpose of temporary injunction. Moreover, the balance of convenience lay in restraining the tenants from changing the nature of the site, in question, otherwise, there was a chance of irreparable loss having been caused to the landlady.

The only argument raised on behalf of the petitioner is that no such application under Order XXXIX Rules 1 and 2 of the Code was maintainable before the Rent Controller. In support of the contention, the learned counsel relied upon Ram Gopal Banarosi Dass v. Satish Kumar 1986 (1) R. C. R. 236, and Gurdial Singh v. Govind Ram, . 1986 (1)R. C. R. 575.

On the other hand, the learned counsel for the respondent submitted that Ram Gopal Banarasi Dass''s case (supra) was based on the proposition that since the power under Order XXXIX Rule 1 (4) could not be exercised by the authorities under the rent control Act. so on the same basis, power under order XXXIX Rules 1 and 2 were also not available to them. According to the learned counsel, this view was not accepted later in Mehtab Singh v. Tilak Raj Arora (1988-1) 93 P. L. R. 269. where the Division Bench of this Court considered the matter and came to the conclusion :-

"We are, therefore, of the considered view that even though the CPC is not applicable as such to the proceedings before the Rent Controller, but the genera) principles contained in the Code, including the one noticed above which are based on Justice, equity and good conscience would govern those proceedings and the two decisions relied upon by the learned counsel for the respondents in Om Parkash v. Nathu Ram 1984 C.L.J 96, 1984 (1) R.C.R. 214 and Raghbir Kaur v. Gurmej Singh 1985 (1) P.L.R. 266 are accordingly overruled."

The question referred before the Division Bench for consideration was as to whether a second petition for the ejectment of a tenant would be competent on a ground on which an earlier petition was got dismissed as withdrawn without liberty to file a second petition.

However, without going info the said controversy, I do not find any merit in this revision petition. The order of the Appellate Authority is still in operation. The ejectment proceedings were filed in July, 1988 and are likely to be finalised Moreover, no such objection was taken by the tenants either before the Rent Controller or before the Appellate Authority. No such objection has been raised either in this revision petition that no appeal as such was competent against the order of the Rent Controller declining ad interim injunction. Consequently, this revision petition fails and is dismissed with no order as to costs.