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1985 Supreme(Del) 37
High Court Of Delhi
ARVIND BERRY - Appellant
Versus
REAR ADMIRAL A.P.S.BINDRA - Respondent
SECOND APPEAL 288 of 1984
Decided On : 01/21/1985
I.S.MATHUR, K.R.Chawla, P.P.MALHOTRA, Ravi Sudan
Headnote:Delhi Rent Control Act, 1958 - Section 14(1)(e) — Parties filed an application under Order 23, Rules 1 & 2 CPC for the passing of the eviction order and the tenant undertook to vacate the premises by 31-10-84; eviction order was accordingly passed. On 27-1-84, the appellant pleaded that the respondent had played fraud because he know that ground floor was going to be vacated and the eviction order was not executable. His plea was dismissed by the controller and the Tribunal. At the Second Appeal stage he sought leave to amend the grounds of appeal to raise the question that the eviction petition did not disclose any cause of action as it was not pleaded that the premises were let out for residential purposes and thereforee the eviction order based on the compromise of the parties was without jurisdiction, nullity and non-executable.
Held:
that if a plea is not specifically made and it is known by implication to the parties, the mere fact that the plea was not specifically taken in the pleadings would not disentitle the party. The plea of non-disclosure of cause of action ought to have been raised at the earliest. The exercise of jurisdiction by the controller for want of pleadings is an irregularity which the tenant could waive and he waived. It was not a nullity.
( 1 ) THIS Second Appeal under Section 39 of the Delhi Rent Control Act, 1958 (for short the Act ) by the tenant is directed against the judgment and order dated 23rd May, 1984 of the Rent Control Tribunal confirming the order dated 16th February, 1984 of the Additional Rent Controller. The question for decision is: Whether the order for eviction of the appellant dated 7th January, 1980 is a nullity and not executable ?
( 2 ) IN June, 1970, the appellant was inducted as a tenant by the respondent on first floor of his property, C-35, Defence Colony, New Delhi on a monthly rent of PRs. 750. 00. The respondentn 24th October, 1977 filed an application for eviction of the appellant under Section 14 ( 1) (e) of the Act. The appellant contested the same. The landlord examined 7 witnesses including himself. The tenant examined himself as a witness. On 2nd January, 1980, the parties filed an application under Order 23 Rules I and 2 of the Code of Civil Procedure for the passing of an eviction order under Section 14 (l) (e) of the Act in favour of the respondent and against the appellant. By this application, the appellant had undertaken to hand over vacant possession of the premises on or before 31st October, 1984. On 7th January, 1980, the statements of the tenant and the landlord in pursuance of the compromise application were recorded which are as follows :
"statement of tenant "statement of Arvind Berry on S. A. I admit the necessity of the petitioner as he has no other suitable residential accommodation. The petitioner is the owner of the premises. Eviction order may be passed in favour of the petitioner. However, I may be given time to vacate the premises till 31-10-1984. In the meantime I shall pay rent. 00 damages for use and occupation at Rs. 1500. 00 p. m. w. e. f. 3-1-1980 I undertake to hand over the vacant possession to the petitioner on or before 31-10-1984. In case I do not pay rent/damages for use and occupation for 2 months consecutively the petitioner shall be at liberty to take execution proceeding at once against me. I shall abide by the terms and conditions of compromise application Ex. P. I. Parties be left to bear their own costs. sd/- Rent Controller, Delhi: 7-1-1980"
"statement of landlord: Statement of Rear Admiral A. P. S. Bindra on S. A. : I have heard the statement of the respondent. The same is correct. The respondent may be granted time till 31-10-1984 Ex. P. I bears the signatures of both the parties. Parties may be left to bear their own costs. sd/- Rent Controller, Delhi 7-1-1980"
( 3 ) THE Rent Controller passed the following order on 7th January, 1980;
"7-1-1980 : Present : Counsel for the parties. ORDER The petitioner has sought eviction of the respondent from the premises detailed in para 8 of the petition on the ground of personal bona fide requirement. From the material on record, as well as in view of the statements of the petitioner as well as respondent who has admitted the service of notice, the ownership of the petitioner and the purpose being residential as well as the factum of the petitioner having not in possession of any other reasonably suitable accommodation and the need of the petitioner being bona filed, I hereby pass an eviction order against the respondent. I am also satisfied that the petitioner requires the premises bona fide. However, the execution order will not be executable before 31-1-1984. Announced. sd/- J. D. Kapoor R. C. Delhi. "
( 4 ) ON 27th January, 1984, the appellant filed an application under section 152 read with Section 151 of the Code of Civil Procedure staling that the parties had agreed that the order would be executable after 31st October, 1984, but in the order time to vacate was given only upfo 31st January, 1984 The appellant, therefore, prayed for correction of the date. It was also stated that the respondent had acquired possession of the ground floor of the suit property and thus. his requirement had since bees satisfied. It was further st
