R. David vs Kanta Rani And Ors.
1993 Latest Caselaw 122 Del

JUDGMENT

P.K. Babri, J.

(1) This appeal is directed against order of the Rent Control Tribunal dated 10/07/1987, by which he dismissed the application of the tenant-appellant seeking setting aside of the eviction order dated 25/05/1983, made in Rent Control Appeal No. 109/83 by the Rent Control Tribunal.

(2) Facts of the case, in brief, are that Mustaq Ram-petitioner No. 2(since deceased) was the owner of Property No. 34, Krishna Market, LajpatNagar-1, New Delhi and the property was being managed by his married daughter Smt. Kanta Rani. Smt. K.anta Rani had let out the premises in question comprising of one room, verandah, temporary store, bath and W.C.located on the rear portion of the said property to the appellant-R. David ona monthly rent of Rs.100.00per month vide rent note dated 14/11/1967. The eviction petition was brought by Smt. Kanta Rani and Mustaq Ram against the tenant on the grounds of eviction covered by Clauses (a) &(e) of proviso to Sub-section (1) of Section 14 of the Delhi Rent Control Act pleading that in an earliar case for eviction brought by Smt. Kanta Rani against the tenant on the ground of non-payment of rent, the tenant had been given the benefit of Section 14(2) but the tenant has again neither paid nor tendered the arrears of rent of the period 1/08/1977, onwards despite service of notice of demand dated 19/12/1977 and as he has been in arrears for more than three months consecutively, thus he was not entitled to have benefit of Section 14(2) again. In respect of the ground of bona fiderequirement, it was pleaded that Mustaq Ram-petitioner No. 2, being the owner of the property in question, for whose benefit the property was beingheld, had no other reasonably suitable residential accommodation in Delhi andthus, he bona fide requires the demised premises for occupation as residence for himself and members of his family as he intended to shift to Delhi and settle in his own house.

(3) The eviction petition was contested by the tenant. Vide judgment dated January 22, 1983, the Additional Rent Controller had passed the eviction order on the ground of non-payment of rent but the ground of bona fide requirement was negatived holding that Mustaq Ram had not been able to satisfy the Court regarding his intention to shift to Delhi. Mustaq Ram was based in Hoshiarpur District at all relevant times.

(4) The appeal was brought by the tenant against the eviction order before the Rent Control Tribunal. On 25/05/1983, the tenant-appellant made a statement admitting that the premises had been let out to him for residential purposes and the same are bona fide required by Mustaq Ramand his family for their own residence and they have no alternate accommodation and he gave a solemn undertaking to the Court that he shall vacate the premises within two years. Counsel for the landlords made a statement that he had no objection to grant of two years time and he withdrew the ground of eviction of non-payment of rent. The Rent Control Tribunal vide his judgment dated 25/05/1983, passed the eviction order on the admission made by the tenant appellant on the ground of eviction covered by Clause (e) of proviso to Sub-section (1) of Section 14 i.e. ground of bona fid requirement of Mustaq Ram and his family, and granted two years time for vacating the premises.

(5) It is admitted case now that at the time the aforesaid statement was made by the tenant, Mustaq Ram was already dead. The tenant moved the petition before the Rent Control Tribunal praying for setting aside of the order of eviction as Mustaq Ram was already dead when he made the admission regarding bona fide need of Mustaq Ram and thus, the order was a nullity.

(6) The short question which now arises for consideration is whether the said order passed by the Rent Control Tribunal could be deemed to be nullity or not ?

(7) From the record it is clear that Mustaq Ram had set up his need of shifting to Delhi and residing in his own house mentioning that he would start his own business in Delhi and would live with his wife in Delhi. It is settled legal proposition that unless and until there is enough material available on the record, may be in the shape of admission by the tenant, only then satisfaction can he arrived at by the Rent Control authorities under the Delhi Rent Control Act with regard to passing of eviction order on any of the grounds given in Section 14 Sub-section(1).

(8) In Bahadur Singh v. Mani Subrat. 1969 Rcr 151, it has been laid down by the Supreme Court that an eviction order passed on an award without any thing more was nullity as the authorities under the Rent Act have no jurisdiction to pass an order of eviction unless the Rent Control authorities are satisfied on material available on the record regarding the existence of one or other ground of eviction mentioned in the Rent Act. This ratio of law was reiterated in Kaushalya Devi & Others v. K.L. Bansal, 1969 Rent Control Reporter 703 and Ferozi Lal Jain v. Man Mal & Another, 1970 RCR375. The Supreme Court in the case of Roshan Lal & Another v. Madan Lal & Others. 1976 Rcr 112. has laid down that even the eviction order could be passed on admissions appearing in application moved u/Order Xxiii, Rule3 of the Code of Civil Procedure if from those admissions ingredients of a particular ground of eviction could be culled out. While discussing the scope of Section 21 of the Rent Act in Smt. Shrisht Dhawan v, M/s. Shaw Brothers,, the Supreme Court held that permission granted under Section 21 could be vitiated if there was an error in jurisdictional fact at the time of grant of permission as valid sanction was sine qua non for Controller'sjurisdiction. It was observed that a jurisdictional fact is one on existence or non-existence of which depends assumption or refusal to assume jurisdiction by a Court or a Tribunal. It was also observed in this judgment that error of jurisdictional fact renders the order ultra vires and bad. Referring to case of Raza Textiles v. Ito, Rampur, , it was held that a Court or Tribunal cannot confer jurisdiction upon themselves by deciding the jurisdictional fact wrongly.

(9) Keeping in view the aforesaid ratio of law laid down by the Supreme Court, we have to examine the eviction order passed by the Rent Control Tribunal keeping in view the factual situation existing at the time the eviction order was passed. It is evident from the record that Mustaq Ram,for whose benefit the property was being held, was intending to shift to Delhi to start some business and live in his own house with his wife although he was based in Hoshiarpur at all relevant times. He had purchased the property in Delhi but had not thought of shifting to Delhi at that time and had allowed the property to be let out by his daughter who was managing the property. Under Section 14(l)(c) the bona fide requirement for residence could be set up for any person for whose benefit the premises are held. 'So,legally speaking Mustaq Ram was not the landlord but he was the owner and the property was being held by a landlady, his daughter, for his benefit. So,the eviction order could be obtained for bona fide requirement of Mustaq Ram. But unfortunately at the time the admission was made by the tenant regarding bona fide requirement of Mustaq Ram, Mustaq Ram was alreadydead. So the satisfaction which had been reached by the Rent Control Tribunal in coming to the conclusion regarding existence of the ground of bona fide requirement stood vitiated as Mustaq Ram was already dead when the said order was made. This is a jurisdictional error appearing in the order of the Rent Control Tribunal which makes the order of the Rent Control Tribunal as nullity.

(10) Counsel for the respondents has vehemently argued that eventhough Mustaq Ram was dead, still bona fide need of his wife was there andthus, the Rent Control Tribunal could reach the satisfaction that the ground of bona fide requirement was available for the benefit of the wife of Mustaq Ram. It is difficult to accept this contention that Rent Control Tribunal could have reached such satisfaction if Rent Control Tribunal was aware that Mustaq Ram was dead. It is a question of fact to be proved, whether wifewould shift to Delhi or not when her husband had already died. There is no such finding reached by the Tribunal and thus. this contention is not available to the respondents for upholding the eviction order.

(11) Hence, I allow this appeal and set aside the impugned order as well as the eviction order and direct that the appeal and the cross-objections,which were filed before the Rent Control Tribunal against the order of the Additional Rent Controller, stand revived on the file of the Rent Control Tribunal. The ground of non-payment of rent which was withdrawn by Counsel for the respondents in view of the solemn undertaking given by the tenant for vacating the premises also has to be restored because that concession was given by Counsel for the respondents subject to the passing of the eviction order on the ground of bona fide requirement on the basis of the solemn undertaking given by I he tenant. The solemn undertaking given by the tenant stands vitiated because tenant was not aware on that date the Mustaq Ram was already dead. The Kent Control Tribunal shall now proceed to decide the appeal as well as the cross-objections on merits. The parties are directed to appear before the Rent Control Tribunal for further proceedings on 19/04/1993.

(12) Office to see that the Lower Court record as well as record of the Rent Control Tribunal are received by the Tribunal before that date. Partiesarc, however, left to bear their own costs in this appeal.