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High Court Of Delhi
PRITAM SINGH - Appellant
Versus
SURAJPERSHAD - Respondent
SECOND APPEAL 257 of 1967
Decided On : 11/21/1967
RENT CONTROL ACT - EVICTION - NOTICE UNDER SECTION 106, TRANSFER OF PROPERTY ACT - WHETHER NECESSARY - AMENDMENT OF PLEADINGS - JURISDICTION OF RENT CONTROLLER - OWNERSHIP OF LANDLORD - BONA FIDE REQUIREMENT.
Fact of the Case:
The appellant, a tenant, challenged the eviction order passed against him by the Rent Controller and affirmed by the Rent Control Tribunal. The landlord had sought eviction on the ground of bona fide requirement for his own occupation and family members. The appellant contended that the landlord failed to serve a valid notice under section 106 of the Transfer of Property Act before filing the eviction application, which was a mandatory requirement for terminating the tenancy. He also sought to amend his pleadings to raise this issue and to argue a new point on appeal that the eviction proceedings were incompetent in the absence of such notice.
Finding of the Court:
The court held that the appellant could not raise the new point of want of notice under section 106, Transfer of Property Act, on second appeal under section 39 of the Delhi Rent Control Act, 1955. The court observed that allowing such a new point would be an exercise of judicial discretion, considering the scope of the appeal, the nature of the objection raised, the state of the record, the reason why it was not embodied in the memorandum of appeal, and whether or not the opposite party would be prejudiced or taken by surprise. In this case, the court found that the appellant had not shown that the new point should be allowed to be raised in the larger interests of justice and that the respondent would not have been seriously prejudiced by allowing the appellant to raise this new point at this late stage for the first time.
Issues: 1. Whether the appellant could raise the new point of want of notice under section 106, Transfer of Property Act, on second appeal under section 39 of the Delhi Rent Control Act, 1955. 2. Whether the landlord was required to serve a valid notice under section 106 of the Transfer of Property Act before filing the eviction application. 3. Whether the appellant could amend his pleadings to raise the issue of want of notice and argue a new point on appeal. 4. Whether the eviction proceedings were incompetent in the absence of a notice under section 106, Transfer of Property Act. 5. Whether the landlord had bona fide requirement for the premises for his own occupation and family members.
Ratio Decidendi: 1. The court held that the appellant could not raise the new point of want of notice under section 106, Transfer of Property Act, on second appeal under section 39 of the Delhi Rent Control Act, 1955, as it would be an exercise of judicial discretion and the appellant had not shown that the new point should be allowed to be raised in the larger interests of justice and that the respondent would not have been seriously prejudiced by allowing the appellant to raise this new point at this late stage for the first time. 2. The court did not decide whether a valid notice under section 106 of the Transfer of Property Act was required before filing the eviction application, as it held that the appellant could not raise this issue on second appeal. 3. The court held that the appellant could not amend his pleadings to raise the issue of want of notice and argue a new point on appeal, as it would cause injustice to the respondent and the appellant had not shown that the amendment was necessary for determining the real question in controversy or to avoid multiplicity of proceedings. 4. The court held that the eviction proceedings were not incompetent in the absence of a notice under section 106, Transfer of Property Act, as the want of notice did not go to the inherent jurisdiction of the Rent Controller. 5. The court upheld the finding of the Rent Controller and the Rent Control Tribunal that the landlord had bona fide requirement for the premises for his own occupation and family members.
Final Decision: The court dismissed the appeal and left the parties to bear their own costs.
( 1 ) THIS second appeal has been preferred under section 39 of the Delhi Rent Control Act, 195s (hereinafter called the Act) from the order of the Rent Control Tribunal dated 24th July, 1967 dismissing the appellant s appeal and affirming the order of the First Additional Rent Controller dated 23rd September, 1966 holding that the landlord bonafide required the permises in question for occupation as residence for himself and for his family members dependent upon him and that he was not in possession of reasonably suitable accommodation and on his finding, making an order of eviction against the tenant with a direction to vacate the premises Within six months from the date of the order. Both the Rent Controller and the Rent Control Tribunal left the parties to bear their own costs.
( 2 ) ON second appeal, which would not lie under the statute unless it involved some substantial question of law, the learned counsel for the appellant has, at the very outset, pressed his application under Order 6, Rule 17 and section 151, Code of Civil Procedure, read with Rule 2s-of the Rules framed under the Act, praying for amendment of his reply to the application for eviction presented before the Rent Controller and also for amendment of the grounds of appeal in this Court. The amendment sought in the reply before the Rent Controller read as under:-
"18. (b) That the applicant was. bound in law to terminate the tenancy of the respondent through a valid notice before filing the application for ejectment. The application deserves to be dismissed as the Rent Controller has no Jurisdiction to proceed on its basis. "
( 3 ) THE additional ground sought to be taken in this Court is in the following terms: -
"that the respondent never served upon the appellant any notice terminating his tenancy. The respondent could not have moved the application for ejectment in this case without first duly terminating-the tenancy. The ejectment ordered in this case is in violation of the law laid down by the Hon ble Supreme Court of India in Manujendra Dutt v. Purnendu Prasad Roy"rule 23 relied upon by the appellant merely provides that in deciding any question rela-ting to the procedure not specially provided by the Act and the Rules framed thereunder, the Controller and the Rent Control Tribunal should, as far as possible, be guided by the provisions contained in the Code- of Civil Procedure. It-is obvious that this rule does not apply to this Court, but this merely shows that insertion of Rule 23 in the heading of the application is redundant. The appellant s learned counsel has submitted that by virtue of the recent decision of the Supreme Court in Manujendra Dutl v. Purnedu Prosad Roy Chowdhry, it was necessary for the landlord to give a valid notice under section 106 , Transfer of Property Act, before he could initiate proceedings before the Kent Controller for evicting the appellant under the Act. According to him, amsndment can be allowed even in the Court of last resort if the amendment sought goes to the root of the matter. He has in the alternative also contended that even without amendment of the pleadings before the Kent Controller for evicting the appellant under the Act, according to him, amendment can be allowed even in the Court of last resort if the amendment sought goes to the root of the matter. He has in the alternative also contended that even without amendment of the pleadings before the Rent Controller and of the grounds of appeal, this Court should, in the interest of justice, hear the appellant on the additional point in support of the challenge against the orders of the Tribunal and the Rent Controller that the eviction proceedings were incompetent in the absence of a notice under section 106, Transfer of Property Act.
( 4 ) DURING the course of arguments, the appellant s learned counsel concentrated most on his praver to be permitted to argue the point of want of notice under section 106, Transfer of Property Act, as, acc
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