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PETITIONER: P.K.VASUDEVA AND ANOTHER

       Vs.

RESPONDENT: ZENOBIA BHANOT

DATE OF JUDGMENT:       11/08/1999

BENCH: V.N.Khare, S.N.Phukan

JUDGMENT:

V.N.KHARE, J.

     Since common questions of fact and law are involved in these  civil appeals and as such they were being disposed of by a common judgment.

     In  all  these appeals the appellants are the  tenants and  the respondent is the landlady.  The respondent  herein owns  a premises in the city of Chandigarh.  There were four separate  tenements  in the said building, two of which  are occupied  by  the two appellants herein.  In the year  1975, the  husband  of  respondent landlady who was  a  government servant  retired  from service and on 5.1.85 he  died.   The State  Legislature  of Punjab amended the East Punjab  Urban Rent  Restriction Act, 1949 (hereinafter referred to as  the Act).   By  the aforesaid amendment a new Section 13A  was added  in the Act.  The aforesaid Section 13A reads as under :

     13A.   Right  to  recover   immediate  possession  of residential  or  scheduled  building to  accrue  to  certain persons  where a specified landlord at any time, within  one year  prior  to  or within one year after the  date  of  his retirement  or  after his retirement but within one year  of the  date  of  commencement of the East  Punjab  Urban  Rent Restriction(Amendment)   Act,  1985,   whichever  is  later, applies  to the Controller along with a certificate from the authority  competent  to remove him from service  indication the  date of his retirement and his affidavit to the  effect that  he  does  not  own  and  possess  any  other  suitable accommodation  in  the  local area in which  he  intends  to reside  to recover possession of his residential building or scheduled  building,  as  the  case  may  be,  for  his  own occupation, there shall accrue, on and from the date of such application  to  such  specified  landlord,  notwithstanding anything contained elsewhere in this Act or in any other law for  the  time  being in force or  in  any  contract(whether expressed  or  implied), custom or usage to the contrary,  a right   to  recover  immediately   the  possession  of  such residential  building  or scheduled building or any part  or parts of such building if it is let out in part or parts.

     By  Notification  dated 15.12.  1986 Section  13A  was

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extended  to the Union Territory of Chandigarh.  After  this provision  was extended to the Union Territory of Chandigarh the  respondent  landlady filed four  separate  applications before the Rent Control Officer, Chandigarh seeking eviction of  the  tenants under Section 13A of the Act.  By an  order dated 27th January, 1989 the Rent Controller passed an order of  eviction  against one of the tenants,  namely,  Dr.(Mrs) S.K.Gill  and  subsequently on 15.3.89 the  Rent  Controller also  passed  an  order of eviction against  another  tenant Bhupinder  Singh.   Dr.(Mrs.)  S.K.Gill and  Shri  Bhupinder Singh preferred two separate revisions before the High Court against  the  orders  of the Rent Controller  directing  for their  ejectment.   The High Court took the view that  under the  second proviso to Section 13A the landlord is  entitled to  recover  possession of only one portion of the  building and  other  tenants  cannot  be  evicted.   Accordingly  the landlady  was given an option to choose any one of the  four tenants for eviction.  Accordingly the revision was allowed. Consequent  upon  the order of the High Court  the  landlady gave  her  choice for eviction of Dr.  (Mrs.)  S.K.Gill  and therefore  she was evicted from that portion of the building which  she  was  occupying as a tenant.  This is  the  first chapter of litigation.

     On  20th December, 1989 the Rent Controller  following the  decision of the High Court rejected the applications of landlady  seeking  eviction against the present  appellants, namely,  S/Shri  Surinder  Sharma   and  P.K.Vasudeva.   The landlady  preferred  two separate revisions before the  High Court   challenging  the  orders  of  the  Rent   Controller rejecting her applications for eviction of the aforesaid two tenants.   When the matter came up before the learned Single Judge,  he was of the view that the question which arose  in the  case  required  consideration  by  a  Division   Bench. Consequently  the question was referred to a Division  Bench of  the  High  Court for giving its opinion.   The  Division Bench  of the High Court was of the view that under  Section 13A of the Act, the landlord could get an order of ejectment only  against one tenant and not against all the tenants  of the  building  and  its opinion was directed  to  be  placed before the Single Judge.  Aggrieved, the landlady challenged the  aforesaid  decision  dated   20.7.92  rendered  by  the Division  Bench  of the High Court by filing  special  leave petitions  in this Court.  Subsequently these special  leave petitions  were  converted  in   civil  appeals  which  were numbered  as  Civil Appeal Nos.  607-608/1993.   Before  the appeals could be decided, a Learned Single Judge of the High Court following the opinion given by the Bench dismissed the revision  petitions on 10.5.93.  However, this order of  the High Court was not challenged by the landlady.

     Subsequently  the aforesaid civil appeals came up  for hearing  before  a bench of this Court.  This Court in  C.A. No.   607-08/1993  took  the view that Section 13A  gives  a special  right to the landlord to enable him to exercise the right  to  recover  the  residential building  for  his  own occupation, if he does not own or possess any other suitable accommodation.  This Court was of further opinion that where the building is let out in part or parts, an option is given to the landlord either to recover immediately the possession of  the  whole  building  or to recover  in  part  or  parts thereof.   Consequently  the civil appeals were  allowed  by judgment  and  order dated 14.11.95.  The said  decision  is reported in 1995 (6) SCC 770.  This is the second chapter of the litigation.

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     After  the  aforesaid  decision  by  this  Court   the respondent  landlady on 9.12.95 filed an application  before the  Rent Controller for executing the order of the  Supreme Court.   However,  the  said application was  dismissed  for default on 26.9.96.

     The  landlady  on  10.12.96   filed  a   miscellaneous application in Civil Revision No.  3025/90 under Section 151 C.P.C.   which  were  earlier  dismissed  for  allowing  the revision  petition  and setting aside the order of the  Rent Controller  dated  20.12.89  in the light of  the  order  of Supreme  Court  dated 14.11.95 in Civil Appeal No.   608/93. In  substance the application was for recall of order  dated 10.5.93.   The Learned Single Judge by an order dated 1.5.97 recalled  the  order dated 10.5.93 dismissing  the  revision petition  and  allowed both the revisions by  remanding  the cases  to  the Rent Controller for decision on merits.   The tenants thereafter moved a review petition against the order dated  10.5.93  but the same was rejected on 10.7.97.   This order  was  not challenged by the tenants.  Consequent  upon the  order of remand by the High Court, the Rent  Controller on  13.6.97 allowed both the petitions filed by the landlady directing  the  eviction of S/Shri Surinder Sharma and  P.K. Vasudeva  who  are the appellants before us,  following  the decision  of  this Court reported in 1995(6) SCC  770.   The tenants  on  23.7.97 filed special leave petitions  in  this Court  against  the orders dated 1.5.97 passed by  the  High Court  remanding the matter to the Rent Controller  although before  filing  the above special leave petitions  the  Rent Control  Officer  had already decided the matter  consequent upon  the  order of remand passed by the High Court.   After the  dismissal of the review petition on 10.7.97 by the High Court  the tenant filed two revisions before the High  Court against  the  orders  dated  13.6.97   passed  by  the  Rent Controller allowing the petitions of the landlady.  The High Court  on  24.9.98  dismissed both the revisions and  it  is against  these  orders the appellants are in appeals  before us.

     Learned  counsel  appearing for the  appellants  urged that the order dated 10.5.93 passed by the High Court having attained  finality the same could not have been recalled  by the High Court by its order dated 1.5.97.  This argument has no  merit.  The sequence of the events shows that the  order of Learned Single Judge of the High Court dated 1.5.97 which was  passed  on  the  concession  of  the  counsel  for  the appellants  was  acted  upon when the Rent  Control  Officer decided  the  matter after remand.  The order  dated  1.5.97 which  was  passed  by the High Court on  agreement  of  the parties stood exhausted when the parties appeared before the Rent  Controller and the Rent Controller decided the  matter and  thereafter there remained nothing to be challenged.  If the  appellants  wanted they could have promptly  challenged the order dated 1.5.97 passed by the High Court and obtained stay of remand order.  The appellant having chosen not to do so,  it is too late in the day to challenge the order  dated 1.5.97  passed  by the High Court based on agreement of  the parties.   Once the counsel for the tenants conceded  before the  High Court that the revision petitions required remand, it  is  no  longer open to the tenants to contend  that  the order  dated 1.5.97 passed by the High Court could not  have been  passed.  This is not all.  The appellant filed  review petitions  against  the  order dated  1.5.97  recalling  the earlier  order but the same was rejected.  This order at  no

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stage  was  challenged.  We are, therefore, of  the  opinion that  seeing the fact and correctness of the case it is  not open  to  the appellant to question the order  dated  1.5.97 passed by the High Court.

     Learned  counsel  appearing  for  the  appellant  then contended  that the petitions by the landlady under  Section 13A  of  the Act before the Rent Controller were  not  filed within the period of limitation.  This submission of learned counsel  has  no  substance.   It  is  on  record  that  the petitions  were filed by the landlady on 14.12.87.  In  view of  this  fact,  we  find that the petitions  filed  by  the landlady  before  the Rent Controller were well  within  the period of limitation.

     In  view  of the above, we do not find any  merits  in these  appeals and they are accordingly dismissed.  However, in the circumstances, there shall be no order as to costs.

     After  this  judgment  was  dictated  learned  counsel appearing for the tenants stated that in case the appellants are  to  vacate the premises immediately, they shall put  to great  hardships  and therefore some reasonable time may  be granted  to  them to vacate the premises.  To this,  counsel for  the respondent has no objection.  We, therefore, direct that  the appellants/tenants shall not be dispossessed  from the  premises  in  question   upto  30.6.2000  provided  the appellants  file usual undertaking in this Court within four weeks  from today.  It is directed that the appellants shall deposit the arrears of rent/damages, if any, within a period of  two months from today and continue to pay month to month rent/damages  to the landlady as and when it falls due.  The appellants/tenants,  on the expiry of the aforesaid  period, shall  hand  over the vacant and peaceful possession of  the premises to the landlady.