Brij Mohan Lal vs Durga Devi And Ors.
1986 Latest Caselaw 130 Del

JUDGMENT

N.N. Goswamy, J.

(1) This revision petition by the landlord-decree- bolder is directed against the order dated 22-7-1978 passed by the executing 500 court whereby the execution application filed by the petitioner was dismissed on the ground that the decree had become a nullity by amendment of section 2 of the Delhi Rent Control Act.

(2) The brief facts, leading to this petition, are that the petitioner-landlord obtained a decree for possession of the premises in dispute on 2-1-1973. The decree was confirmed by this Court in Regular Second Appeal on 1-9-1975. The petitioner filed the execution application being execution case No. 160 of 1975 on 4-12-1975. By that time, the Delhi Rent Control (Amendment Ordinance 1975) bad come into effect. By the said Ordinance the definition of tenant as appears in section 2(1) of the principal Act was amended. By amendment it was provided that in the event of death of the person continuing in possession after the termination of the tenancy subject to the order of succession and conditions specified, respectively, in explanation I and explanation Ii of this clause such of the aforesaid persons : "(a) spouse (b).....................and (e) ................................. as had been ordinarily living in the premises with such person as a member or members of his family up to the date of his death, were included in the definition of the word "tenant"." Section 4 of the Ordinance was to the following effect : "4. Nothing contained in the principal Act, as amended by this Ordinance shall be deemed to authorise the re-opening of any proceeding for: (a) the fixation of standard rent in relation to any premises to which the principal Act applies ; and (b) the eviction of any person from any premises to which the principal Act applies ; and (e) any other matter which the Controller is empowered, by or under the principal Act, to decide. 5. If such proceeding had been finally disposed of before the commencement of this Ordinance : Provided that if, in relation to any proceeding which had been finally disposed of before the commencement of this Ordinance, the Controller is satisfied that the landlord had not recovered possession of the premises in relation to which the decree or order for eviction of the person in possession thereof was made, he shall, if such person by a written application made within ninety days from such commencement so desires, set aside such decree or order and re-open the proceeding for such eviction and decide such proceedings in accordance with the provisions of the principal Act as amended by this Ordinance."

(3) Inaccordance with the aforesaid provisions of the Ordicance, the respondent-tenant filed an application for reopening of the proceedings on 501 8-12-1975. This fact was brought to the notice of the executing Court and the executing court framed the following issues on the pleadings of the parties; "1. Whether the applicant/J.D. has become tenant under the decree- holder as alleged ? 2. Relief."

(4) On consideration of the entire matter relating to the amendment of the Act, the executing court came to the conclusion that the respondent bad become a tenant and as such the decree had become a nullity. Consequently the execution application was dismissed.

(5) It appears that the exciting court did not take note of the provisions of the Ordinance which were later on incorporated in the principal Act. Section 5 of the Ordinance provided that whenever an application for reopening of the proceedings was filed before the Rent Controller it was incumbent that the execution application would remain stayed till that application for reopening was decided finally by the Rent Controller. In any other case the execution proceedings bad to remain stayed for a period of 90 days. The executing court had obviously no jurisdiction to reopen the proceedings because the proceedings could only be reopened by the Rent Controller and the executing court is in no way concerned with the reopening for which he has no jurisdiction. The application for reopening the proceedings having been filed all that the executing court had to do was to stay the proceedings till the application was decided. It appears that the application filed by the respondent before the Rent Controller has not been decided till date because of the impugned order.

(6) The contention of the learned counsel for the petitioner is that the proceedings which had concluded in civil court could not be reopened, this contention cannot be accepted for the simple reason that section 4, particularly, authorises the re-opening of proceedings which led to the decree and decree can only be passed by a civil court. The Delhi Rent Control Act nowhere uses the word "decree" and all it does is to use the word "eviction order". The Legislature was conscious of this fact when it used the word "decree". Any other interpretation would defeat the very object of the amendment because obviously till the date of amendment such a decree had to be obtained from a civil court. If the decree of civil court could not be reopened then obviously the amendment had no effect and would frustrate the very object of the amendment. In all such cases where the possession bad not been taken by the decree-holder an application for re-opening the proceedings was competent before the Rent Controller and in fact in the present case such an application has been filed.

(7) For the reasons recorded above, this petition is allowed to the extent that the impugned order is set aside but the execution application will remain stayed till the decision of the application filed by the respondent for re-opening of the proceedings. The parties would beat liberty to approach the executing court after the application has been decided. It is further directed that the Rent Controller would proceed expeditiously and dispose of the application filed by the respondent at the earliest and in no case later than six months from to-day. The parties are directed to appear before the Addl. Rent Controller on 2nd April, 1986. I am told that the proceedings in the application were adjourned sine die. In this situation, the respondent will move an application before the Addl. Rent Controller to have the proceedings revived. A copy of this order be sent to Mr. A K. Garg, Addl. Rent Controller for compliance. In the circumstances, there will be no order as to costs.