Shittal Parshad and another vs M/s Gyani Ram and another

G.C. Mittal, J.—The counsel for the landlord has urged that the application for amendment was allowed by the Appellate Authority on payment of Rs. 110/- as costs which costs were accepted by the counsel for the tenant. Therefore, the amendment cannot be challenged in this revision.

The landlord has filed an application for the ejectment of the tenant on five grounds, one of which was subletting The Rent Controller found that the ground of sub-letting was established but dismissed the ejectment petition because the premises from which the ejectment was sought, were stated to be consisting of two rooms and the (sic) which was a part of the premises was not included therein. Therefore, the Rent Controller was of the view that it was a case of partial ejectment which was not permissible and consequently, dismissed the ejectment petition. The landlord went up in appeal and before the Appellate Authority filed an application for the amendment of the ejectment application so as to include the verandah also. The amendment was granted as noted in the opening part of this order on payment of costs of Rs 110/-. Thereafter by order dated 15-12-1984, the Appellate Authority ordered ejectment of the tenant without upholding the finding of sub-letting and even without mentioning anything about it. On the other band, it was observed as follows:

The application was dismissed by the Rent Controller on the sole ground that it sought partial ejectment. All other issues were decided in favour of the landlords.

Then it proceeded to notice the grant of application for amendment of the ejectment petition and since the amendment was carried out and the order of granting amendment remained unchallenged, it was observed that the appeal was bound to succeed and was accepted and the order of ejectment was passed.

Firstly, there is factual mistake in the order that on all other issues the finding was recorded by the Rent Controller in favour of the landlord. Out of the five grounds, only one ground of sub-letting was established whereas all other grounds were found against the landlords.

As a Respondent, the tenant was entitled to argue that there was no sub letting proved on the record of the case and unless he considered that the finding of sub-letting recorded by the Rent Controller was correct, it was the duty of the Appellate Authority to have considered that matter of the landlord did not want to challenge the finding recorded against him by the Rent Controller on other grounds of ejectment. An order of ejectment of a tenant is not to be lightly passed unless a ground is established on the record. It is true that the Rent Controller did find the ground of sub letting to have been established, but that matter has to be determined by the Appellate Authority unless the tenant or his counsel accepted the order of ejectment on the ground of sub-letting. It is not to stated in the order.

For the reasons recorded above, this Revision is allowed, the order of the Appellate Authority dated 15-11-84 is hereby set aside and the matter is remitted to it to decide the appeal in accordance with law keeping in view the observations made above. The parties, through their counsel are directed to appear before the Appellate Authority on 27-5-1985.