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High Court Of Delhi
BHAGWANTI - Appellant
Versus
HAVELI RAM - Respondent
SECOND APPEAL 356 of 1968
Decided On : 01/14/1972
RENT CONTROL ACT - NOTICE OF TERMINATION - WAIVER - AMENDMENT OF WRITTEN STATEMENT - APPEALABILITY OF ORDER - DELHI RENT CONTROL ACT, 1958, SECTIONS 14, 37(2), 38.
Fact of the Case:
The tenants filed an application to amend their written statement to raise the plea of absence of service of a notice of termination of tenancy before the application for eviction was filed against them. The Additional Controller dismissed the application, holding that it was made very late and that the amendment would amount to the introduction of a new and inconsistent case. The tenants appealed to the Rent Control Tribunal, which dismissed the appeal, holding that the order of the Additional Controller was only procedural and interlocutory and was not appealable.
Finding of the Court:
The court held that the order of the Additional Controller was not merely procedural but affected the right of the tenants to claim a dismissal of the application for eviction. As such, it was appealable under section 38 of the Delhi Rent Control Act, 1958.
Issues: 1. Whether the tenants waived their right to raise the plea of absence of service of a notice of termination of tenancy by not raising it in their written statement. 2. Whether the order of the Additional Controller dismissing the application for amendment of the written statement was appealable. 3. Whether the amendment of the written statement was merely procedural or affected the rights and liabilities of the parties.
Ratio Decidendi: 1. Waiver implies that the person waiving his right is aware of the right, and if he did not know of the right at all, there could be no waiver of it by him. 2. Even an interlocutory order passed under section 37(2) of the Delhi Rent Control Act which requires the Controller to follow as far as may be the practice and procedure of a Court of Small Causes, is an order under the Act, and is subject to appeal under section 38(1), provided it affects some right or liability of any party. 3. Whether an amendment of a written statement is procedural or not has to be judged from the nature of the amendment sought to be made.
Final Decision: The court allowed the second appeal, set aside the order of the Rent Control Tribunal, and remanded the case to the Rent Control Tribunal for fresh disposal.
( 1 ) THIS second appeal has been filed by the tenants, Shrimati Bhagwanti and Arjan Dass. against an order of Shri Mohan Lal Jain, Rent Control Tribunal, Delhi, dated 6th June, 1968, in Rent Control Appeal No. 475 of 1958, dismissing the said appeal as not being maintainable for the reason that the order of Shri A P. Chowdhary, Additional Controller, Delhi, dated 3rd May 1968, appealed from, was only procedural and interlocutory in nature and, as such was not appealable under section 38 of the Delhi Rent Control Act, 1958.
( 2 ) HAVELI Ram, claiming to be the landlord in respect of Quarter No. 13-14, Block No. 20, Moti Nagar New Delhi, filed a petition, dated 27th December 1965, on 3rd January, 1966, before Shri A. P. Chowdhary, Additional Controller, Delhi, for eviction of three alleged tenants in respect of the said premises, viz. (1) Shrimati Bhagwanti, (2) Sunder Dass son of Durga Dass and (3) Arjan Dass, under clauses (3) and (h) of the proviso to sub-section (1) of section 14 of the Delhi Rent Contro1 Act, 1958. In column 18 (b) of the application, the heading of which was "whether notice required has been given and if so, particulars there of (copies of such notice and the tenants reply, if any, should be furnished) , it was stated as under:-
"notice given, although not required. "the alleged tenants filed their reply or written statement on 8th March, 1966 in opposition to the application for eviction. In reply 10 the allegation in paragraph 18 (b), it was stated in the written statement that "no notice had been received by the answering respondents. " The alleged tenants also denied that there was any relationship of landlord and tenant between the parties, and pleaded that Bhagwanti was the owner of the premises in dispute and was in possession of the same.
( 3 ) ON 27th December, 1967, the evidence of A. W. I was recorded, and at that stage the alleged tenants filed on the date, an application under Order 6 Rule 17 of the Code of Civil Procedure stating that in a recent judgment reported in Mannjendra Dutt v. Purnedu Prasad Roy Chowdhary it had been held by the Supreme Court that notice under section 106 of the Transfer of Property Act was essential to bring to an end the alleged relationship of landlord and tenant and the landlord could not sue for eviction without complying with the said requirement and that they should, therefore, be permitted to tike the plea of absence of a notice of termination, by amendment of their written statement. The said application was opposed by the landlord, Haveli Ram. He filed a reply, dated 10th January, 1968; stating that the decision of the Supreme Court was inapplicable, and thai in any case a valid notice terminating the tenancy was issued by him, but that the same was refused by the alleged tenants. By his order, dated 3rd May, 1968, the Additional Controller rejected the said application on the grounds that it was made very late, that if the amendment was allowed the alleged landlord would be obliged to withdraw his application for eviction, that if the alleged tenants had raised the said objection either in the beginning or at an earlier date, the alleged landlord would have withdrawn his application for eviction and filed a fresh petition after serving the necessary notice, that an award of damages would not adequately compensate the alleged landlord as his petition would become unmaintainable, that the notice mentioned in column 18 (b) of the pleadings was a notice required under the provisions of the Delhi Rent Control Act and not a notice contemplated by section 106 of the Transfer of Property Act, and that since the alleged tenants had denied that there was a relationship of landlord and tenant between the parties, the amendment, if allowed, would amount to introduction of not only a new case, but also an inconsistent case.
( 4 ) AGAINST the said order, Shrimati Bhagwanti and Arjan Dass preferred an appeal under section 38 of the Act to the court o
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