Rai Chand Dewan Chand vs Audh Bihari Lal Bhatnagar and Another

R.S. Pathak, C.J.—This is a tenant''s revision petition arising out of eviction proceedings instituted under the East Punjab Urban Rent Restriction Act.

The Respondents Audh Bihari Lal Bhatnagar and Brij Bihari Lal Bhatnagar filed an application u/s 13 of the East Punjab Urban Rent Restriction Act, 1949, for the ejectment of the Petitioners claiming that they were propertions of the premises 101, Pursharthi Basti, Simla, that the Petitioners were tenants therein and that the accommodation was required bona fide by the Respondents for their own occupation. The application was resisted by the Petitioners who claimed that they were contractual tenants and were not liable to ejectment.

The Controller, Simla, made an order dated January 11, 1974, allowing the application and directing the Petitioners to put the Respondents in possession. An appeal filed by the Petitioners has been dismissed by the Appellate Authority, Simla, by its order dated September 3, 1975.

In this revision petition, the first contention urged on behalf of the Petitioners is that the eviction application filed u/s 13 of the East Punjab Urban Rent Restriction Act is not maintainable inasmuch as it was not instituted by all the four landlords but by only two of them. It appears that the premises is owned by four persons, the Respondents being two of them. It is urged on behalf of the Petitioners that all four proprietors should have joined in instituting the application and in case, as happened here, it was filed by only two, the remaining two should have been impleaded in the array of Respondents. In reply, learned Counsel for the Respondents urges that the contention should not be entertained in view of he principle incorporated in Order 1, Rule 13 of the Code of Civil Procedure, that is to say that if an objection on the ground of non-joinder of parties is not taken by the time the issues are settled, it must be deemed that such objection has been waived. It appears that the plea of non-joinder was raised by the Petitioners before the Appellate Authority, and a similar objection to its being entertained was also raised by the Respondents before the Appellate Authority. Unfortunately, the Appellate Authority did not apply its mind to the controversy. It becomes necessary to decide then whether the plea of non-joinder should be entertained and if so, whether the eviction application should fail on the ground of non-joinder. In my opinion, the plea should not be entertained. If at all, it should have been raised during the trial of the eviction application before the Controller. There is no dispute that it could have been raised then. Had it been, the Respondents would have had an opportunity of meeting it and, if so advised, of removing the defect. It would also have been open to the Respondents to show that even though four persons were proprietors of the premises and two of them alone filed the application the latter were authorised in that behalf by the remaining two. The principle embodied in Order I, Rule 13 is an illustration of the doctrine that a technical objection should not be allowed to defeat the rights of the parties if it is one which, had it been taken at an earlier stage, could have been cured. As long ago as 1843, the Privy Council in Dhurm Das Pandey v. Mussumat Shama Soondri Dibiah (1841) 33 Moo. Ind. App. 229 observed:

No objection was made in either of those courts (the courts below) that the proper parties were not before the court. If such an objection had been made, it might have been removed, and I think it is a safe maxim for a Court of Appeal to be governed by--that an objection, which if taken, might have been cured, and which has not been taken in the court below shall not be taken in the Court of Appeal.

The same principle was followed by the Privy Council in Puwada Venkateswara Rao Vs. Chidamana Venkata Ramana, and N.H.M. Abdul Cader v. S.L. Ahamado Lebbe Marikar AIR 1936 P.G. 51, 54.

The second contention of learned Counsel for the Petitioners is that the notice u/s 106 of the Transfer of Property Act served on the Petitioners was issued by the Respondents only and not by all the proprietors and therefore, it is said, the notice is invalid. The initial question is whether in the circumstances of the present case a notice u/s 106 of the Transfer of Property Act was at all necessary. Firstly, it may be made clear that Section 106 of the Transfer of Property Act does not apply as such in the District of Simla. Secondly, the East Punjab Urban Rent Restriction Act is a self-contained Code complete in itself, and therefore the provisions incorporated in Section 106 of the Transfer of Property Act will not be attracted. In Puwada Venkateswara Rao Vs. Chidamana Venkata Ramana, the Supreme Court laid down that where the provisions of a Rent Act prescribe a complete and self-contained procedure for eviction of tenants it was not necessary to serve a notice terminating the tenancy u/s 106 of the Transfer of Property Act. The learned Judges observed that the requirement in Section 106 cannot be imported in the procedure provided under the Rent Act. The service of notice u/s 106 was held material in those cases where the ejectment was sought by way of a civil suit because "in the context of the remedy of ejectment by an ordinary civil suit...the usual notice of termination of tenancy u/s 106 of the Transfer of Property Act was necessary to terminate a tenancy as a condition precedent to the maintainability of such a suit". Learned Counsel for the Petitioners, however, has drawn my attention to Shri Rattan Lal Vs. Shri Vardesh Chander and Others, where it seems that the Supreme Court held a notice u/s 106 to be necessary. It was observed that the provisions of the Delhi Rent Control Act, 1958 were intended to supplement the Statutory requirements of termination of a tenancy under the general statutory law and not to exclude "them. The view proceeded on the basis that the Transfer of Property Act and the Delhi Rent Control Act should be read together. It is evident that the view appears diametrically opposed to what has been laid down in Puwada Venkateswara Rao (supra). The decision in Rattan Lal (supra) was rendered by Y.V. Chandrachud, V.R. Krishna Uyer and A.C. Gupta, Ji., on December 9, 1975, while the decision on Puwada Venkates-wara Rao was rendered by A.N. Ray, C.J., M.H. Beg, J. and Jaswant Singh, J. on March 8, 1976. There is a well settled principle of law that where two apparently conflicting decisions are rendered by the same Court the latter decision must be taken to lay down the correct law. On that basis alone, if any inconsistency is discernible between the aforesaid two decisions of the Supreme Court, the decision in Puwada Venkateswara Rao (supra) must prevail. There is another consideration which deserves notice. In Raval and Co. Vs. K.G. Ramachandran and Others, a Bench of five Judges of the Supreme Court held by majority that having regard to the scheme of certain Rent Acts the provisions of Section 106 of the Transfer of Property Act could not be held relevant. Apparently this decision was not placed before the learned Judges in Rattan Lal (supra). It received the consideration of the learned Judges in Puwada Venkateswara Rao. In my opinion, the law laid down in Puwada Venkateswara Rao (supra) should be preferred as the law binding on this Court. In the present case, the provisions of the East Punjab Urban Rent Restriction Act provide a complete and self-contained Code in the matter of ejectment of tenants, and it is not necessary that a suit should be filed for that purpose. Accordingly, I hold that before filing the eviction application u/s 13 of the Act no notice of the character contemplated by Section 106 of the Transfer of Property Act is at all necessary.

Learned Counsel for the Petitioners next points out that the Respondents had continued to accept rent from March 1, 1971, onwards and this, he says, constitutes proof of their continuing the tenancy in favour of the Petitioners. It is not disputed that the amount were received by the Respondents specifically without prejudice to their rights. In the circumstances, the acceptance of rent can be of little avail to the Petitioners.

Finally, it is contended that the finding of the Appellate Authority that the accommodation was required by the Respondents bona fide for their personal occupation is erroneous inasmuch as in their testimony the Respondents stated before the Controller that they required the premises for themselves and made no reference to the requirement of the members of their families. The Appellate Authority, it is pointed out, has proceeded on the basis that the requirement was that of all the members of the family and not merely that of the Respondents. It seems to me that the finding of the Appellate Authority is not on that account vitiated. The Appellate Authority, even as the Controller was, was bound to consider all the material before it and to take an over-all and comprehensive view of the case. The accommodation was required for the occupation of the Respondents and their families, and that is what must be taken to have been intended all along, both in the pleadings and in the evidence led before the Controller.

In the circumstances, the revision petition fails, and is dismissed with costs.

Two weeks are allowed to the Petitioners to vacate the premises.