R.N. Khanna and another vs Smt. Kailash Rani and others

J.M. Tandon, J.—This execution second appeal is directed against the order of Shri B.S. Yadav, District Judge Gurgaon, dated February 22, 1975.,

The facts of the case, in shot, are that Shmt. Kailash Rani and Shmt. Mohni, respondents Nos. 1 and 2, being landlords of the premises in dispute, filed an ejectment application u/s 3 of the East Punjab Urban Rent Restriction Act (hereinafter referred to as the Act) against Mul Chand, respondent No. 3, R.N. Khanna appellant No. 1 and one Sadhu Ram, on the grounds that Mul Chand who was the tenant had sublet the premises and further was in arrears'' of rent for 21 months, at the rate of Rs. 30/- per mensem. That petition was filed on January 14, 1969. The case was fixed for February 1, 1969, for which date R.N. Khanna, appellant No. 1, had been served but he did not put in appearance and hence ex parte proceedings were taken against him. On that date, the landlords and Mul Chand effected a compromise. Mul Chand admitted the grounds of ejectment against him to be true. It was agreed that the arrears of rent which came to Rs. 630/- would be paid in 21 monthly instalments along with the future monthly rent. It was also agreed that Mul Chand would pay the monthly rent regularly on the expiry of 21 months and in default of payment, the order of ejectment passed against him shall be executed. It was also in the agreement that the landlords did not accept the sub-tenants who shall continue holding under Mul Chand and will be liable to be dispossessed in execution of the ejectment order against him. The Rent Controller passed the ejectment order in favour of the landlords in terms of the agreement. The monthly rent as also the instalments of arrears of rent at the rate of Rs. 30/- per mensem were duly paid for 21 months after the passing of the ejectment order. Thereafter the rent was paid upto January 31, 1972. Mul Chand respondent No. 3, did not pay rent of the premises in dispute to the landlords thereafter. In May 1969, Satinder Pal Singh, appellant No. 2 had been inducted as a sub-tenant in place of Sadhu Ram.

The rent having not been paid to the landlords after January 31, 1972, the order of ejectment against Mul Chand was sought to be executed. Mul Chand did not object. Appellant No. 1 and 2 however, raised objections that the order of the Rent Controller sought to be executed was a nullity On the pleadings of the parties, the Executing Court framed the following issues:--

Whether the impugned order is a nullity as alleged?

Whether the objectors have locus standi to file the objections?

Relief.

The learned Executing Court found both the issues against the objector-appellants and dismissed their objections vide order dated December 24, 1974, Feeling aggrieved, the appellants filed an appeal against that order, which was dismissed by the learned District Judge, Gurgaon vide order dated February 22, 1975. The appellants have consequently filed the present execution second appeal.

The learned counsel for the appellants has argued that the order of the Rent Controller was a nullity inasmuch as it had been passed on the grounds which are not provided for u/s 13 of the Act. According to him, section 13 of the Act does not provide that a tenant shall be liable to be ejected in case he fails to pay future monthly rent regularly. In the instant case, the ejectment order was passed wherein the payment of future rent was also envisaged. The order of ejectment having been passed on a nonstatutory ground was a nullity and could not be executed. In support of his contention, the learned counsel has cited Nagiadas Ramdas v. Dalpat Ram Ichharam etc (1975) R.C.J. 48: 1974 C.L.J. 57 (S.C.)

The learned counsel for the respondents has contended that the respondent-landlords had filed the ejectment petition against Mul Chand on the ground of his having sublet the premises and for nonpayment of arrears of rent. Mul Chand admitted that arrears of rent were due from him and further he had sublet the premises. He also admitted that he was liable to be ejected on these grounds. It was by way of concession that the landlords agreed to defer the execution of the ejectment order passed in their favour on payment of arrears of rent in instalments and regular payment of future monthly rent. Under these circumstances, the order of the learned Rent Controller cannot be taken to have been passed on any ground not provided for u/s 13 of the Act. The learned counsel for the respondents has also placed reliance on Nagiadas Ramdas v. Dalpat Ram Ichharam etc (1975) R.C.J. 48: 1974 Cur. L.J. 57(S.C.), (supra), to support his view.

I have carefully considered the points urged by the learned counsel for the parties and in my view the order of the learned Rent Controller cannot be taken as a nullity. The learned Rent Controller could pass a valid order of ejectment on the ground of nonpayment of rent by Mul Chand tenant as also on the ground of his having sublet the premises. This is what happened in the instant case. Mul Chand accepted that he was to pay arrears of rent, which he could not offer on the first date of hearing, and further he had sublet the premises. The landlords having agreed to defer the execution of the order of ejectment against Mul Chand to accommodate him would not render the order a nullity. The ratio of Nagiadas Ramdas v. Dalpat Ram Ichharam etc (1975) R.C.J. 48: 1974 Cur. L.J. 57 (S.C.), (supra) supports the contention of the learned counsel for the respondent-landlords on this point. The Executing Court as also the lower Appellate Court have, therefore, rightly found that the order of ejectment sought to be executed is not a nullity.

R.N. Khanna appellant was served for February 1, 1969, but he absented. Ex-parte proceedings were taken against him. On that very date the matter was compromised between the landlords and Mul Chand tenant. Sadhu Ram, who was the other sub-tenant at that time, is no more in the picture. Satinder Pal Singh, appellant No. 2, was inducted in the property as a subtenant in May, 1969, that is, after the ejectment order was passed on February 1, 1969. The landlords did not accept to sub tenants and it was specifically provided that they will be liable to be dispossessed in execution of the ejectment order against Mul Chand. It is, therefore, clear that the appellants have no locus-standi to file objections. The concurrent finding of the Courts below on that point is also affirmed.

The learned counsel for the appellants has argued that the compromise between the landlords and Mul Chand dated February 1, 1969, was a collusive affair and accordingly the order of the learned Rent Controller is a nullity. I see no force in this contention. In the first place, there is nothing on the file to suggest that the landlords and Mul Chand colluded to harm R.N. Khanna, appellant No. 1 Secondly, R.N. Khanna had been served for February 1, 1969, and he did not chose to contest. Thirdly, the plea of collusiveness was not taken up in the Courts below. The order of the Rent Controller cannot, therefore, be termed as a nullity on the ground of collusiveness as well.

For the reasons given above, this appeal fails and is hereby dismissed. No. order as to costs.