Pearey Lal Syal vs Dhian Singh

I.D. Dua, J.

(1) This second appeal u/s 39 of the Delhi Rent Control Act questions the concurrent conclusions of the Rent Control Tribunal and of the First Additional Rent Controller by means of which it has been held that the landlord (respondent in this Court) requires the premises for his own personal use.

(2) Before the Rent Control tribunal ,a point was sought to be raised for the first time based on the observations of a judgment of the Supreme Court in Manujendra Dutt v Purnedu Prosad Roy Chowdhnryl. This new point was based on the provisions of section 106 of the Transfer of Property Act. The learned Tribunal, in its discretion did not allow this point to be raised.

(3) Before me, Shri N. D. Bali, the learned counsel for the appellant, has very strongly and eloquently argued that the learned Tribunal has committed a substantial error of law In not permitting him to raise this point. I am not impressed by this contention. A new point can only be raised en appeal with the permission of the Appellate Court and this permission is to be granted or declined in the discretion of the Court of Appeal. Decision on a discretionary matter cannot ordinarily raise a substantial question of law. It does not even raise an unsubstantial question of law. Bat on going through the reasoning of the learned Tribunal, I find that the decision is perhaps also correct in law. However even assuming that I would have come to a different decision myself, that would hardly be a ground for interference on second appeal u/s 39 of the Delhi Rent Control Act.

(4) Shri Bali has, then contended that on the admitted pleadings, notice u/s 106 of the Transfer of Property Act was necessary. This point again is a new point which is sought to be raised on second appeal in this Court which has a very restricted scope. No special features have been pointed out in this case suggesting as to why this new point should be allowed to be raised at this late stage. I am assuming that on the pleadings such a plea would be open, though I am far from satisfied of Its correctness. Section 106, as its language prima facie shows, can be displaced by several pleas of fact and its absence from the pleadings of the party, later relying on it, on appeal is likely to prejudice the opposing litigating party.

(5) Lastly, Shri Bali has submitted that the order of the learned Rent Control Tribunal suggests that its judicial mind was not applied to the question of bona fide requirement of the landlord. My attention has, however, not been drawn to any material on the record which would support this suggestion. On the contrary, the impugned order, on its plain reading, quite clearly discloses the application of the judicial mind of the learned Tribunal, for it has dealt with all the points which were apparently argued before it. Any point not contained in this order must be presumed not to have been urged, unless the contrary is convincingly established. I am unable to conclude that the Tribunal did not apply its judicial mind to the points canvassed before it.

(6) On behalf of the respondent my attention has been drawn to two decisions of this Court reported as Pritam Singhv. Swaj Pe''sha:'' and Raj Kumar v Subhash Kumar*, but it is unnecessary to gn into them in detail. I, however, do feel inclined to agree with the respindent''s learned counsel that the present case is concluded by questions of fact and it if not open to this Court to go into them on second appeal u/s 39 of Delhi Rent Control Act.

(7) This appeal accordingly fails and is dismissed with costs.

(8) Shri Bali at this stage wants some time for vacating the premises. Time can only be granted if he gives an undertaking on behalf of his client that the latter would vacate the premises after the expiry of the time granted. The counsel answers in the affirmative and under- takes to vacate the premises on the expiry of six weeks, which I grant him hereby for vacating the premises. On this undertaking, this order will not be executed till the expiry of six weeks.