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High Court Of Delhi
RAJINDER SINGH - Appellant
Versus
UNION OF INDIA - Respondent
C.M. 80 of 1983
Decided On : 02/17/1984
I may mention here that for the purpose of disposal of a petition under Section 14-A the use of purpose of letting is no conclusive test. Whatever, is suitable or adopted for residential uses can be designated as residential premises and is "residential accommodation," within the meaning of Section 14-A. The letting purpose was not to be determined in those proceedings.
B. Constitution of India Article 227, and Delhi Rent Control Act, Section 25 (B) = Whether Rent Controller is ameneble to the jurisdiction under Article 227?- No., Whether the High Court has ample powers to convert a petition under Article 227 into a revision petition under Section 25(B) D.R.C. Act? - Yes., What is the period of limitation for filing revision petition under Section 25(B), D.R.C. Act? Answer is 3 years.
Two preliminary objections have been raised by the learned counsel for the tenant. Firstly, it is contended that the Rent Controller, is not amenable to the jurisdiction under Article 227 of the Constitution of India and as such the impugned order cannot be challenged in these proceedings.
Mr. G.S. Vohra, learned counsel for the petitioner concedes that the petition under Article 227 is not maintainable and prays that it should be converted into a Revision Petition under proviso to Sub-section (8) of Section 25-B of the Act. In my opinion, this court in the interest of justice has ample power to convert a petition under Article 227 into a Revision Petition under Section 25-B of the Act. There is no bar of limitation in this case. It is not disputed that this court has taken the view that Revision Petition under Section 25-B can be filed with a period of three years.
C. Delhi Rent Control Act ; Section 25(B)(8) : Order refusing recovery of possession of the tenanted premises; Whether appealable or revision to the said order lies?- Answer is that revision only to the High Court lies.
The second objection raised by the counsel for the tenant is that the petition for revision is incompetent under the proviso to Sub-section (8) of Section 25-B of the Act and that only an appeal as contemplated by Section 39 of the Act could be riled before the Rent Control Tribunal.
This also has no merit. The law is settled that it is not essential that a order to be covered by Section 25-B(8) of the Act must be an order for the recovery of possession of the premises; an order refusing recovery of possession is also so covered, against which no appeal lies to the Rent Control Tribunal, but the remedy of the landlord is by way of revision and revision only to the High Court under Section 25-B of the Act.
D. C.P.C. : Section 11 : res-judicata : Previous eviction petition under Section 14(A) D.R.C. Act; fresh eviction petition under Section 14(1)(e) of D.R.C. Act; Whether finding reported on extraneous issue of letting purposes in the previous proceedings operates as res-judicata in the fresh proceedings under Section 14(1)(e) D.R C. Act? -No.
For a finding to operate as resjudicata, the question or issue must have been directly and substantially.nl issue. For a matter to be directly and substantially in issue. It must be necessary to decide the issue in order to give relief. The relief claimed by the landlord in the earlier eviction petition was only under Section 14-A of the Act. Neither there was any occasion nor any need to go into the letting purpose in the earlier petition. Any finding recorded in an extraneous issue cannot operate as resjudicate. A mere opinion of the Rent Controller on a matter not necessary for the decision of the earlier case and not arising out of an issue before it is mere obiter dicta and cannot be said to be a decision on an issue. It cannot operate as Resjudicata.
E. Delhi Rent Control Act, Section 25-B(5) : Order granting leave to contest passed; same order proceeds further to determine the letting purpose : Whether the order is in gross violation of the principles of trial of eviction petition and procedure established by law? — Yes Order quashed.
If these were allegations that the premises are residential and were let out for residential purpose, then the eviction petition had to be tried. The Rent Controller without determining the point for determination and without affording an opportunity to the parties of substantiating allegations made in the petition, proceeded to determine the letting purpose. To say the least this is a gross violation of the principle of trial of the eviction petition and the procedure established by law. There are no basis to impute to the landlords a case which was not put at the trial. Whether the tenancy agreement was in writing or its terms varied later on could only be established during the trial.
For the above reasons the petition succeeds and order dated September 7, 1982 is quashed. The Rent Controller will proceed of determine the eviction petition after affording the parties an opportunity to substantiating their allegations in accordance with law.
( 1 ) PETITIONER No. I herein while in service of the Government filed an application for eviction against Respondent No. 1 in respect of ground floor and first floor of the premises No. Z/9, Rajouri Garden, New Delhi under Section 14-A of the Delhi Rent Control Act, 1958 (as amended) hereinafter referred to as the Act and presented it on Januaiy 7, 1977. Subsequently he made an application to the Rent Controller, Delhi that he did not want to proceed with is eviction petition and accordingly it was dismissed as withdrawn. After retirement from Government service, the petitioner against filed a petition for eviction on January 11, 1979 under Section 14-A of the Act in respect of the said premises being eviction petition No. B-53/79. Section 14-A was added by the Delhi Rent Control (Amendment) Act, 1976 with the object of conferring a right on Government servant landlords to recover immediate possession of premises belonging to them when the cause of action as mentioned therein accured. During the course of arguments the Rent Controller, Delhi got it clarified from the learned counsel for petitioner No. I as to under what provision of law he was prosecuting his claim. The counsel stated that he was coming under Section 14-A of the Act because under law he could not combine the claim under Section 14-A and Section 14 (1) (e) of the Act. The Rent Controller proceeded to consider the merits of that eviction petition and came to the conclusion that the case was not at all covered under Section 14-A of the Act. It was held that a case Under Section 14-A of the Act was not made out. The eviction petition was dismissed by order dated August 10, 1981. However, the Rent Controller, Delhi further considered that if it is to be taken that the petitioner had come under Section 14 (1) (e) of the Act, them no right is available on account of the fact that the premises in question had not been let out for residential purposes. I may mention here that for the. purpose of disposal of a petition under Section 14-A the use or purpose of letting is no conclusive test. Whatever, is suitable or adopted for residential uses can be designated as residential premises and is "residential accommodation" within the meaning of Section 14-A. The letting purpose was not to be determined in those proceedings.
( 2 ) THE petitioner then filed on October 21, 1981 a fresh petition under Section 14 (1) (e) of the Act for eviction of Respondent No. 1, tenant from the said premises. The petition was tried under the summary procedure contained under Section 25-B and summons under Schedule III of the Act were issued to the tenant. The tenant filed an application dated December 2, 1981 for leave to contest the eviction petition. The grounds on which the leave was. sought are contained in the affide of Shri S. B. Roy Chaudhry dated December 2, 1981. By order dated September 7, 1982 the Rent Controller granted leave to the tenant to contest the eviction petition on the ground alleged in Sub para 1 (4) of Para 4 of the affidavit dated December 2,1981.
( 3 ) BY the same order the Rent Controller proceed to consider the grounds of eviction. The Rent Controller noticed the filing of the earlier eviction petition No. E-53/79 under Section 14-A of the Act and the Judgment dated August 10, 1981. The Rent Controller then considered the finding recorded in the order dated August 10, 1981 that the premises had not been let out for residential purposes only. The Rent. Controller proceeded to consider the lease deed and other documents were not let for residen- tial purposes only. It is this part of the order which is challenged in this petition, under Article 227 of the Constitution of India.
( 4 ) TWO preliminary objections have been raised by the learned counsel for the tenant. Firstly, it is contended that the Rent Controller, is not amenable to the jurisdiction under Article 227 of the Constitution of India and as such the impugned order cannot be challenged in
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