HARMOHINDER KAUR Vs. HARI SINGH

JUDGEMENT

(1.) The eviction application of the landlord-respondent was dismissed by the Rent Controller but was accepted by the Appellate Authority holding that the demised premises were residential in character and the landlord bonafide required the same for his own occupation. The learned counsel for the tenant-petitioner did not have much to say on merits but it was vehemently contended that the landlord had filed a petition for eviction on December 12, 1972 and during the pendency of the some this petition was filed on October 1, 1973. Thereafter the landlord got his previous petition dismissed in default. Under these circumstances the argument is, the present petition was barred under Order 23 rule 1. sub-clause (4) of the Code of Civil Procedure. According to the learned counsel for the respondent the provisions of Code of Civil Procedure are not applicable in eviction proceedings under the East Punjab Urban Rent Restriction Act, 1949 (hereinafter called the Act). On behalf of the petitioner reliance has been placed on Roshan Lal and another V. Madan Lal and others, 1975 AIR(SC) 2130, wherein the Supreme Court came to the conclusion that the provisions of Order 23 Rule 3 of the Code of Civil Procedure regarding compromise were applicable to suits under the special statutes like the Madhya Pradesh Accommodation Control Act, 1961 which governed the case before the Supreme Court. It was, however, held by their Lordships that if the agreement or compromise for the eviction of the tenant is found on facts of a particular case to be in violation of a particular Rent Restriction or Control Act, the Court would refuse to record the compromise as the same will not be a lawful agreement but if the compromise was found to be lawful by the authorities under the said Act the Court was bound to record the compromise and pass a decree thereon The ratio of the decision in another judgment of the Supreme Court relied upon by the learned counsel as Silver Screen Enterprises V. Devki Nandan Nagpal, 1970 RCJ 98is also to the same effect. On the other hand the learned counsel for the respondent has relied on Goverdhan Das V. Sodhi Dyal Singh etc, 1969 RCR(Rent) 938, in which the question to be determined was whether the Appellate Authority under the East Punjab Urban Rent Restriction Act, 1949 had the authority to grant permission to the landlord-applicant to withdraw the eviction application with liberty to file a fresh application. It was held by D.K. Mahajan, J. (as he then was) that only certain provisions of Code of Civil Procedure to a limited extent were applicable to the proceedings under the Act and the provisions of Order 23 Rule 1 of the Code of Civil Procedure regarding withdrawal of eviction application was not applicable. The same view was held by Harbans Singh, C.J. (as he then was) in Nikka Singh V. Bir Singh and others,1978 2 RLR 377, and by Jagjit Singh, J. in Messrs Lachhman Dass Sain Ditta Mal V. Shri Hanuwant Dass Sud,1968 PunLR 74. It was also urged by the learned counsel for the landlord that in view of section 14 of the act subsequent eviction application can he rejected on the ground of previous application having been filed only if the issues involved had been finally decided on merits in former proceedings. As in the present case the previous application was not disposed on merits but was dismissed in default, the same did not stand in the way of the landlord filing the second petition. It was also contested that in the present case eviction order has been passed on the basis of a finding that the landlord required the premises bonafide for his personal need. Even if the previous application on this ground was rejected even on merits the sine did not stand in the way of the fresh application as a fresh cause of action arose with regard to the need of the landlord regarding the demised premises. Reliance was placed on Harwant Kaur and others V. Harinam Sankirtan Mandal (Regd.) Yamuna Nagar and another, 1973 75 PunLR 111, wherein B R. Tuli, J. held that dismissal of one application does not debar a second application on the same ground if it can be made out to the satisfaction of the Rent Controller or the Appellate Authority that the landlord wants the residential building for his own occupation.

(2.) After a careful perusal of the authorities relied upon on both the sides I am of the view that the provisions of Order 23 Rule 1 of the Code of Civil Procedure relating to the withdrawal of the application and the consequence thereof are not applicable to the proceedings under the Act which is a self contained Code the intention of the Legislature in enacting section 14 of the Act is also clear that unless the issues involved in both the proceedings involved are substantially the same which have been already adjudicated upon on merits in the previous proceedings the second application is not barred. In view of the same the ratio of the decision in Amir Din Shahib Din V. Shiv Dev Singh Jhanda Singh,1947 AIR(Lah) 102 is also not applicable to the present case.

(3.) Consequently there is no merit in the revision petition which is dismissed in limine. However, the prayer of the learned counsel for the petitioner to grant some reasonable time to vacate the premises is allowed. The petitioner may vacate the premises within three months provided he deposits all the arrears of rent upto date within one month from today.