Hari Chand vs Swaran Lal
1997 Latest Caselaw 146 Del

JUDGMENT

S.N. Kapoor, J.

(1) This petition has been filed against dismissal of the suit for possession,butchallengingfindingsonlyonissueNos.3and4.Theyreadsasunder: "(1)................. (2) ................. (3) Whether the defendants are unauthorised occupants of the suit property? (4) Whether there is relationship of landlord and tenant in-between the parties? Findings on other issue have not been challenged in any of the grounds in the petition.

(2) At the time of issuing notice, a question arose whether second appeal could not have been filed in view of the provisions of Section 102, Civil Procedure Code in respect of suits which are not of the nature of suits cognizable by the Court of Small Causes. It was left open.

(3) Section 102, Civil Procedure Code reads as under : "Nosecone appeal in certain suits- 102. No second appeal shall lie in any suit of the nature cognizable by Court of Small Causes, when the amount or value of the subject matter of the original suit does not exceed-[three thousand rupees] substituted by Amendment Act, 1976, w.e.f. 1.2.1977".

(4) The valuation of the suit is Rs. 300.00 . In terms of item 4, Second Schedule read with Section 15 of the Provincial Small Causes Courts Act, 1987, "a suit for the possession of immovable property or for the recovery of an interest in such property" is expected from the cognizance of a Court of Small Causes. It is thus append that Section 102, Civil Procedure Code does not bar filing of second appeal and second appeal lies in view of Section 100(1), CPC. Since second appeal lies, revision petition would not be maintainable.

(5) It appears from the impugned order that the finding relating to the user of the property is based on a finding in an earlier litigation filed and contested in between the parties. In that case, relating to the case of eviction on the bonafide requirement, it was held by the Additional Rent Controller as under: "Thus it is evident that the purpose of residence of premises is residence-cum- commercial. Under such circumstances, the provisions of Clause (e) of Section 14(1) does not attract the claim of the petitioner".

(6) It also appears from the impugned judgment that admittedly no appeal from this order had been filed and consequently, the learned Senior Sub-Judge was absolutely justified in holding that no other finding could be given after the matter has been decided earlier by holding that the premises were left out for residence- cum-commercial purpose. Since nothing is stated in the grounds of appeal to dispute this fact,, the view taken by the learned Appellate Court was absolutely justified.

(7) The learned Appellate Court relied upon Smt. Gian Devi Anand v. Jeevan Kumar 6- Ors., Air 1985 Sc tenant under Section 2(1) Supreme Court held in para 31 as under: "31.The termination of the contractual tenancy in the Act does not bring about any change in the status and legal position of the tenant, unless there are contrary provisions in the Act; and the tens it. Jtwi u .standing the termination of tenancy does enjoy an estate or interest in the tenanted premises. This interest or estate which the tenant under the Act despite termination of the contractual tenancy continues to enjoy creates a heritable interest in the absence of any provision to the contrary. In the absence of the provision contained in Sub-section 2(l)(iii), the heritable interest of the heirs of the statutory tenant would devolve on all the heirs of the so called statutory tenant on his death and the heirs of such tenant would in law step into his position. This Sub-section (iii) of Section 2(1) seeks to restrict this right insofar as the residential premises are concerned".

(8) Though observations made by the Court in paras 34 and 36 are also relevant, yet, I would refer to just conclusion arrived at in para 37. In para 37 it further observed : "37.In the Delhi Act the Legislature has thought if fit to make provisions regulating the right to inherit the tenancy rights in respect of residential premises. The relevant Provisions are contained in Section 2(l)(iii) of the Act, the Legislature in the Act under consideration has thought it fit not to make any such provision. It may be noticed that in some Rent Acts provisions regulating heritability of commercial premises have also been made whereas in some Rent Acts no such provisions either in respect of residential tenancies or commercial tenancies has been made. As in the present Act, there is no provision to inherit .the tenancy rights of the tenant in respect of tenanted premises, the tenancy right which is heritable devolves on the heirs under the ordinary laws of succession. The tenancy of Wasti Ram, therefore, devolves on all the heirs of Wasti Ram on his death.

(9) There is no doubt that these observations relate to tenancy of commercial premises while the question here is now of premises which are commercial as well as residential. If we treat premises predominantly residential, then premises could have been held residential. But after a substantive final finding given by the Additional Rent Controller the premises could be termed only as residential-cum- commercial. Inheritance in this respect shall be governed by ordinary law of succession and not restricted law of inheritance regarding tenancy provided in Section 2(e) of the Drc Act. Thus the View taken by the learned Additional Senior Sub-Judge appears to bejustified. The respondent being tenant and not unauthorised occupants could not be evicted by a Civil Court for a civil suit is barred by Section 50 of the Delhi Rent Control Act from entertaining any suit for eviction of a tenant.

(10) In view of the foregoing I do not find force in this revision petition and dismiss the same.

(11) A copy of this order be sent to the Trial Court concerned through learned District Judge for information and to proceed in this matter in accordance with law.