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CASE NO.: Appeal (civil)  895 of 2007

PETITIONER: Vinay Kr. Khambate

RESPONDENT: Vinay Kr. Aggarwal & Ors

DATE OF JUDGMENT: 22/02/2007

BENCH: Dr. ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T (Arising out of S.L.P. (C) No. 10951 of 2006)

Dr. ARIJIT PASAYAT, J.

Leave granted.          Challenge in this appeal is to the orders passed by a  learned Single judge of the Delhi High Court dismissing the  petition filed by Appellant.

 A brief reference to the factual aspect would suffice.   Respondent filed a petition for eviction of the appellant’s  father under Section 22(d) of the Delhi Rent Control Act, 1958  (in short the ’Act’) claiming  that the premises in suit are  required for furtherance of activities.  Father of the appellant  filed a written statement stating that the respondent-Trust  was a private trust and as such the petition under Section 22  was not maintainable as the said provision specifically  excludes from its ambit institutions set up by a private trust.   Before recording of evidence, appellant’s father expired on  26.6.2003.  Respondent moved an application under Order  XXII Rule 4 of the Code of Civil Procedure, 1908 (in short the  ’Code’) stating that the appellant  was the sole surviving legal  heir of the deceased-tenant.  Since tenancy of the father of the  appellant had been terminated as such there was no  succession of the tenant to acquire the tenancy in succession  even for a limited period of one year.  Appellant filed his reply  and took the stand that he was a perpetual tenant and had  inherited tenancy rights of his father.  Learned Additional  Rent Controller by order dated 16.9.2005 allowed the  application under Order XXII Rule 4 of the Code read with  Section 2(1)(ii) of the Act. While deciding the application, he  passed the eviction order on the same day i.e. on 16.9.2005 by  observing that the appellant was not financially dependent on  his father at the time of his death and since the suit premises  were let out for residential purposes, tenancy of the father  having been terminated by notice dated 21.9.1999, appellant  had the right to continue in possession for a limited period of  one year only and he cannot take the defence taken by his  father.  Appellant challenged the said order by preferring an  appeal before the Rent Control Tribunal, Delhi (in short the  ’Tribunal’ ).  The Tribunal dismissed the appeal.  A petition  was filed before the High Court challenging the orders of the  Additional Rent Controller and the Tribunal and the High  Court by the impugned order dismissed the petition.

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Though several points were taken by the appellant in  support of the appeal, primarily it was stated that the order of  eviction could not have been passed on the very same day on  which the application under Order XXII Rule 4 was allowed.  The question whether the appellant had any defence available  was to be adjudicated. The order of eviction could not have  been passed in a summary way as has been done.

Learned counsel for the respondents supported the  orders passed by lower forums and the High Court.

Undisputedly the respondents had filed an application  under Order XXII Rule 4 of the Code read with Section 2(i)(ii)  of the Act. The same was filed  on 5.9.2003 and the relevant  portion of the petition read as follows:

"That although Shri Vijay Kumar Khambate is  the son of the deceased respondent and the only LR  yet he does not come under the purview of ’tenant  as envisaged under Section 2(1)(ii) of the Delhi Rent  Control Act as he was not financially dependent on  the respondent.  As such there is no successor of  the deceased respondent to acquire the tenancy in  succession even for a limited period of one year."

The reply to the said petition was filed by the appellant  where the following stands were taken:

               "That the deceased Shri P.S. Khambate  died as a contractual tenant and on his death  the respondent became the tenant by operation  of law.

That the respondent Vinay Kumar  Khambate was living in the premises in suit  and was not financially dependent on deceased  respondent and as such the tenancy of the  respondent is not hit by the provision of  Section 2(1)(ii) of the Delhi Rent Control Act  and the respondent became a lawful perpetual  tenant after the death of late Shri P.S.  Khambate.  Thus the petition as framed and  filed is not maintainable."

The Additional Rent Controller allowed the application in  terms of Order XXII Rule 4 of the Code and on the same day  without considering the various stands taken in the objection,  disposed of the matter.

It would have been appropriate for the learned Additional  Rent Controller to permit the appellant to place materials in  support of his stand which obviously has not been done.  In  the above circumstances we set aside the order of the High  Court confirming the order of the Tribunal and the Additional  Rent Controller and remit the matter to the Additional Rent  Controller who shall hear the appellant on the question as to  whether the appellant was perpetual tenant and/or inherited  the tenancy right of his father.  We make it clear that we have  not expressed any opinion on the merits.  Since the matter is  pending since long, Additional Rent Controller  would do well  to dispose of the matter within a period of four months from  the date of receipt of our order.  Parties are permitted to file  copy of this order before the Additional Rent Controller so that

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the matter can be heard early.

The appeal is allowed to the aforesaid extent with no  orders as to costs.