Smt. Veeran Wali vs Sulakhan Singh

N.K. Kapoor, J.—This is landlady''s revision petition against the order of the appellate authority, Ambala, whereby her appeal against the order of the Rent Controller dated 7.2.1987 was dismissed.

Briefly, put, Shrimati Veeran Wali filed a petition u/s 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (for short ''the Act'') seeking eviction of the respondent on the ground of non payment of rent and that the petitioner requires the demised house for her own occupation and for the occupation of her children. The petitioner further averred that she is presently residing in House No. 2420 which is on rent with her. The accommodation in that house consists of only three rooms and another room in their occupation adjoining house bearing No. 1456, the total accommodation is insufficient for the fast growing family of the petitioner. The necessary ingredients that the petitioner is not possessed of any residential accommodation in the urban area of Ambala Cantt, and that she has not vacated the same after the commencement of the Act of 1949 without sufficient cause were also pleaded in the petition.

The respondent put in appearance, filed written statement and pleaded that he is not liable to pay tax As regards rent, he has stated that arrears of rent as assessed by the Rent Controller were tendered on the first date of hearing. The respondent pleaded ignorance about the size of the family of the petitioner. It was further the case of the respondent that the ejectment application has been filed since ex-vacated house fetches more price at the time of the sale which according to the respondent, the landlady intends. In addition to replying on merits , the respondent raised preliminary objection to the effect that the ejectment application is barred u/s 14 of the Act.

The Rent Controller framed the following issues.:-

Whether the respondent is liable to be ejected on the ground of non-payment of arrears of rent ? OPP.

Whether the petitioner requires the premises in dispute for his bona fide use and occupation and for the necessity of her married son ? OPA.

Whether the application is barred u/s 14 of the Rent Act as alleged in the preliminary objection No. 1. ? OPR.

Relief.

The Rent Controller on appraisal of evidence of the parties decided all the issues against the petitioner and consequently dismissed the ejectment petition. The lower appellate Authority, however found merit in the contention of the appellant with regard to her claim that she is in bonafide need of the house for occupation and so reversed the finding of the Rent Controller under issue No. 2. The lower appellate Authority after observing that the family of the appellant consists of herself, husband, three grown up daughters of marriageable age and two sons and the fact that one of her son is married and has two children, came to the conclusion that the accommodation with the petitioner is insufficient and her requirement for the demised portion of the house is bona fide. Still the lower appellate Authority under issue No. 3 which is as to whether the application is barred u/s 14 of the Act, affirmed the finding of the Rent Controller and dismissed the appeal.

The lower appellate Authority white affirming the finding of the Rent Controller under issue No. 3 came to the conclusion that there is no change in the circumstances of the petitioner for filing the present ejectment application. This was on account of earlier decision between the parties copy of order of Rent Controller dated 9.12.1981 Exhibit R-3.

Feeling dissatisfied with the concurrent findings of the Courts below, the petitioner has challenged the same on the ground that both the authorities have acted illegally, arbitrarily and without jurisdiction. The learned counsel for the petitioner has thus contended that the approach of the authorities below while deciding issue No. 3 against the petitioner is erroneous and such a finding is not sustainable in law. The learned counsel further submitted that the authorities below erred in law in holding that the order dated 10.9.1982 Exhibit P-2/A, passed by the Rent Controller giving permission to the petitioner to withdraw the previous ejectment petition with liberty to file fresh ejectment petition on the same cause of action is null and void and does not help the petitioner in any manner. Both the authorities erred in law that the previous ejectment petition filed by the petitioner against the respondent on the ground of personal necessity would operate as res-judicata in the present ejectment application. The contention of the learned counsel is that there is no denying the fact that the order dated 10.9.1982, Exhibit P-2/A was passed in the presence of counsel for the parties. Not only this, the counsel for the respondent did not object to the petitioner''s prayer to withdraw the appeal and permission sought for filing fresh petition on the same cause of action. In fact, this sole objection raised by the counsel for the respondent was that such a prayer should not be allowed without payment of costs. Since permission was granted with the consent of the respondent counsel, the objection raised with regard to maintainability of the present petition on the basis of Section 14 of the Act was wholly impermissible. Lastly, the counsel submitted that the Division Bench judgment of this Court reported as Ram Dass v. Smt. Sukhdev Kaur (1981) 83 P. L. R. 452 relied upon by the appellate Authority, in fact, is not applicable on the facts of the present case. There is no reference in the order allowing the petitioner to withdraw the appeal with liberty to file afresh or the same has been passed under Order 23 Rule 1 (3) of the Code of Civil Procedure. It is the Rent Controller who in view of the statement of the parties thought of granting the permission sought for filing a fresh petition. Such an order cannot be said to have been passed under Order 23 Rule 1 (3) of the Code of Civil Procedure. The counsel further urged that in any case, even if it be held that the previsions of Order 23 Rule 1 (3) of the CPC are not applicable to the proceedings under the Rent Act then too the matter is liable to sent bank to the appellate Authority for fresh decision i. e. for deciding issue No. 3 without taking into consideration order dated 10 9.1982 Exhibit P-2/A.

On a careful perusal of the evidence on record and the position of law with regard to the applicability of Order 23 Rule 1 (3) of the CPC the proceedings under the Rent Act, as enunciated in Division Bench judgment in Ram Dass''s case (supra) and Section 14 of the Haryana Urban (Control of Rent and Eviction) Act, 1973, I find no merit in this petition.

Examining the factual aspects of the case, it is worth noticing that Shrimati Veeran Wali filed a petition u/s 13 of the Act against the respondent seeking his eviction on the ground of bona fide need which was dismissed by the Rent Controller vide order dated 15.6.1981 In this petition she specifically stated that the accommodation with her was insufficient since her family consisted of two sons and three daughters. In a statement before the Court, she gave total members of her family to be eight in number, i.e., her husband, two sons and three daughters and the eldest son Jagmohan Singh who was married and had a son. In the present petition filed on 7.10.1982, besides the above referred persons, Jagmohan Singh is stated to have been blessed with another son. Thus, the second petition has admittedly been filed on the same grounds which somehow did not find favour with the Rent Controller. Even a bare perusal of the present petition, it does not disclose the change in circumstances. Rather the grounds averred in the present petition and the earlier petition are almost identical. Not only this, the present petition has been tiled within 10 months of the decision by the Rent Controller in the earlier petition. Section 14 of the Act envisages summarily rejection of an application under sub-section (2) or sub-section (3) of Section 13 of the Act in case it raises substantially the issue as has been finally decided in any former proceeding under this Act There is no denying the fact that the issue raised in both the petitions i.e. insufficient accommodation on account of large family, is in fact, identical Such a petition was, in fact, liable to be dismissed at the threshold '' However, the Rent Controller and subsequently the appellate Authority chose to examine the contentions raised with regard to issue No. 3 and the effect of permission granted by the Rent Controller to file fresh petition vide order dated 10.9.1982. As has been noticed by the appellate Authority and otherwise proved on record vide Exhibit P-l/A the order of appellate Authority, Ambala, dated 29 4.1982 whereby per- mission was granted in the pending appeal for effecting the necessary amendment sought by the petitioner besides seeking amend meat ha I filed another application for permission to withdraw the petition an 1 the same was got dismissed as withdrawn. Though the appellate Authority had no jurisdiction to remand the case, yet on perusal of Exhibit P-2/A (order dated 10 9.1982) it appears that the case was sent back and thereafter on a verbal prayer of the petitioner''s counsel permission was granted on payment of costs of Rs. 75/- to file a fresh petition. Both the authorities came to the conclusion that the provisions of Order 23 Rule 1 (3) of the CPC are not applicable in rent proceedings in view of the judgment of the Division Bench in Ram Dass''s case (supra) The Rent Controller, indeed acted without jurisdiction in allowing the petitioner to withdraw the petition and file afresh on the same cause of action. Both the authorities have acted in accordance with law.

The last contention of the counsel that even if Order 23 Rule 1(3) of the CPC is not applicable, yet the matter needs fresh probing by the appellate Authority is also without any merit. The following observation made by the Division Bench in Ram Dass''s case (supra) does not in any way advance the case of the petitioner.

"However, it is axiomatic that the mere label of the provisions mentioned in the application made by the respondents is in no way conclusive. If any other relief within the ambit of the procedure which can be lawfully devised by the rent authorities can be made available to the respondents, he cannot be denied the same outright The appellate Authority is, therefore directed to decide afresh the application of the respondents dehors the provision of Order 23 Rule 1(3) of the Civil Procedure Code."

Section 14 of the Act is complete bar to the present proceedings. Both the authorities below have rightly decided issue No. 3 against the petitioner. Resultantly, I find no merit in the revision petition and dismiss the same. The parties will, however, bear their own costs.